Sharma & Ors. Vs. Batra Hospital & Med. Research Centre &Ors 
INSC 98 (10 February 2010)
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1385 OF
2001 Kusum Sharma & Others .. Appellants Versus Batra Hospital &
Medical Research Centre & Others .. Respondents
This appeal is directed against the judgment and order dated 30th
August, 2000 passed by the National Consumer Disputes Redressal Commission, New
Delhi (for short, `National Commission') in Original Petition No.116 of 1991.
The appellants filed a complaint under section 21 of the Consumer Protection
Act, 1986 claiming compensation of Rs.45 lakhs
attributing deficiency in services and medical negligence in the treatment of
the deceased Shri R.K. Sharma (who was the husband of appellant no.1, Kusum
Sharma and the father of appellant nos. 2 and 3).
Brief facts which are necessary to dispose of this appeal are as
Late Shri R.K. Sharma was a Senior Operations Manager in the
Indian Oil Corporation (Marketing Division). In June 1989, he developed blood
pressure. He was very obese. He complained of swelling and breathlessness while
climbing stairs. He visited Mool Chand Hospital on 10.12.1989 but no diagnosis
could be made. The Indian Oil Corporation referred him to Batra Hospital on
14.3.1990 where he was examined by Dr. R.K. Mani, respondent no.2 and Dr. S.
Arora who advised him to get admitted for Anarsarca (Swelling).
On 18.3.1990, Shri Sharma was admitted in Batra Hospital. On
20.3.1990, an ultrasound of abdomen was done and the next day, i.e., on
21.3.1990, a C.T. scan of abdomen was done and it was found that there was a
smooth surface mass in the left adrenal measuring 4.5 x 5 cm and that the right
adrenal was normal. Surgery became imperative for removing the left adrenal.
The deceased, Shri Sharma and appellant no.1 were informed by Dr. Mani,
respondent no.2 that it was well encapsulated benign tumor of the left adrenal of
less than 5 cm in size which could be taken out by an operation. It was decided
to carry out the surgical operation for the removal of abdominal tumor. On
2.4.1990, the doctor obtained consent from the appellants for the operation of
removal of abdominal tumor. On test, the tumor was found to be malignant. The
treatment for malignancy by way of administering Mitotane could not be given as
it was known to have side effects.
The surgery was carried out on 2.4.1990 by Dr. Kapil Kumar,
respondent no.3. During the surgery, the body of the pancreas was damaged which
was treated and a drain was fixed to drain out the fluids. According to the
appellants, considerable pain, inconvenience and anxiety were caused to the
deceased and the appellants as the flow of fluids did not stop. After another
expert consultation with Dr. T.K. Bose, respondent no.4 a second surgery was
carried out on 23.5.1990 in Batra Hospital by Dr. Bose assisted by Dr. Kapil
Shri Sharma was fitted with two bags to drain out the fluids and
in due course, wounds were supposed to heal inside and the fluid was to stop.
The deceased was discharged on 23.6.1990 carrying two bags on his body, with an
advice to follow up and for change of the dressing. The deceased next visited
Batra Hospital only on 31.8.1990 and that too to obtain a Medical Certificate
from Dr. Mani, respondent no.2.
On 9.10.1990, Shri Sharma vomited at home and arrangements for
shifting him to the Batra Hospital were made and the Hospital's ambulance sent
by Dr. Mani. Shri Sharma died in the hospital on 11.10.1990 on account of
It is pertinent to mention that after the discharge from Batra
Hospital on 23.6.1990, the deceased wrote a letter on 26.6.1990 to his employer
narrating the agony and the pain he underwent at the hands of the doctors in
The deceased, on the suggestion of Dr. Bose, respondent no.4
visited Modi Hospital on 10.7.1990 where Dr. Bose was a Consulting Surgeon for
change of dressing after 17 days.
nos. 2 and 3, namely, Dr. Mani and Dr. Kapil Kumar visited the residence of the
deceased on 14.7.1990 and found him in a bad condition and asked him to go to
AIIMS where he was admitted on 22.7.1990 and treatment was given for pancreatic
fistula and chronic fistula. He was discharged on 26.7.1990 with an advice to
follow up in the O.P.D. The deceased again went to Mool Chand Hospital on
17.8.1990 with pancreatic and feacal fistula which was dressed. The deceased
was discharged from Mool Chand Hospital on 31.8.1990. The deceased went to
Jodhpur on 29.9.1990 and on 30.9.1990 he had to be admitted in the Mahatma
Gandhi Hospital at Jodhpur where he was diagnosed with having post- operative
complications of Adrenoloctomy and Glutteal abscess. The deceased was
discharged from there on 3.10.1990 with an advice to get further treatment at
AIIMS and when the deceased again went to AIIMS on 8.10.1990, Dr.Kuchupillai, a
senior doctor at AIIMS wrote on a slip `to be discussed in the Endo-Surgical
Conference on 8.10.1990'.
The appellants after the death of Shri Sharma filed a complaint
under section 21 of the Consumer Protection Act, 1986
before the National Commission claiming compensation attributing deficiency in
services and medical negligence in the treatment of the deceased Shri Sharma.
The appellants attributed death of Shri Sharma because of
negligence of the doctors and the hospital. The appellants alleged that the
informed consent was completely lacking in this case. The appellants also
alleged that the only tests done before operation to establish the nature of
tumor were ultrasound and C.T. scan which clearly showed a well capsulated
tumor of the size 4.5 x 5 cm. in the left adrenal and the right adrenal was
The appellants alleged that the deceased Shri Sharma had no access
whatsoever to any of the hospitals records before filing the complaint.
The appellants also alleged that there was nothing on record to
conclusively establish malignancy of the tumor before the operation was
undertaken. The appellants also had the grievance that they were not told about
the possible complications of the operation. They were told that it was a small
and specific surgery, whereas, the operation lasted for six hours. The
appellants alleged that pancreatic abscess was evident as a result of
pancreatic injury during surgery. The appellants further alleged that there was
nothing on record to show that Dr. Kapil Kumar, respondent no. 3 possessed any
kind of experience and skill required to undertake such a complicated
The appellants also had the grievance that they were not informed
in time of the damage caused to the body of pancreas and the removal of the
According to the appellants, the `anterior' approach adopted at
the time of first surgery was not the correct approach. Surgery should have
been done by adopting `posterior' approach for removal of left adrenal tumor.
Dr.Kapil Kumar, respondent no. 3 after the first operation on 2.4.1990 told the
appellants that the operation was successful and the tumor was completely
removed which was in one piece, well defined and no spreading was there. After
the surgery, blood was coming out in a tube which was inserted on the left side
of the abdomen. On specific query made by the deceased and appellant no.1,
respondent nos. 2 and 3 told them that the pancreas was perfectly normal but
during operation on 2.4.1990, it was slightly damaged but repaired instantly,
hence there was no cause of any anxiety. When the fact of damage to pancreas
came to the notice of the deceased, he asked for the details which were not
given. The appellants alleged that the tumor taken out from the body was not
The complaint of the appellants was thoroughly examined and dealt
with by the National Commission. The National Commission had decided the entire
case of the appellants in the light of the law which has been crystallized by a
number of cases decided by this Court. Some of them have been extensively dealt
with by the Commission.
The allegations in the complaint were strongly rebutted by Dr.
Kapil Kumar, respondent no. 3. Dr. Kapil stated in his affidavit that the
anterior approach was preferred over the posterior approach in the suspected
case of cancer, which was the case of Shri Sharma. The former approach enables
the surgeon to look at liver, the aortae area, the general spread and the
opposite adrenal gland. The risk involved was explained to the patient and the
appellants and they had agreed to the surgery after due consultation with the
With the help of medical texts in support of adopting `anterior'
approach, respondent no. 3 mentioned as under:
"The `anterior' approach for adrenalectomy is mandatory whenever optimum
exposure is required or when exploration of the entire abdomen is necessary.
Therefore, this approach is used in patients with adrenal tumours >4 cm in
diameter, or in patients with possibly malignant tumours of any size, such as
pheochromocytoma or adrenocortical carcinoma.....
of the left adrenal gland requires mobilization of the spleen and left colon.
The lateral peritoneal attachments of the left colon are freed, initially. Then
the spleen is scooped out from the left upper guardant medially and the
avascular attachments between the spleen and diaphragm are divided. The spleen,
stomach, pancreatic tail and left colon are retracted medially en bloc to the
superior mesenteric vessels. The left adrenal gland is exposed splendidly in
this manner". - Peritoneum, Retroperitoneum and Mesentery - Section IV.
"Adrenal operations. Surgery should be initial treatment for all patients
with Cushing syndrome secondary to adrenal adenoma or carcinoma. Preoperative
radiologic lateralization of the tumor allows resection via a unilateral flank
incision. Adrenalectomy is curative. Postoperative steroid replacement therapy
is necessary until the suppressed gland recovers (3-6 months).
carcinoma should be approached via a midline incision to allow radical
resection, since surgery is only hope for cure". - Principles of Surgery,
18th Edition Page 560.
"Adrenocortical malignancies are rare, often at advanced stage when first
discovered and should be approached using an anterior approach to allow
adequate exposure of the tumor and surrounding soft tissue and organs". -
Technical Aspects of Adrenalectomy - By Clive S. Grant and Jon A. Van Heerden -
Chapter Thirty Five."
The medical texts quoted above speak of both the approaches for
adrenaloctomy. Nowhere the appellant no.1 has been able to support her
contention that posterior approach was the only possible and proper approach
and respondent no. 3 was negligent in adopting the anterior approach.
Apart from the medical literature, Dr. N. K. Shukla, Additional
Professor at AIIMS and a well-know surgeon stated in unequivocal terms in
response to a specific question from the appellant no.1 that for malignant
tumors, by and large, we prefer anterior approach.
Dr. Nandi, Professor and Head of Department of Gastro- Intestinal
Surgery at AIIMS also supported `anterior' approach and confirmed and
reconfirmed adoption of `anterior' approach in view of inherent advantages of
In view of the medical literature and the evidence of eminent
doctors of AIIMS, the National Commission did not find any merit in the
According to the appellants, Dr. Bose, respondent no. 4, who
performed the second surgery on 23.5.1990 did not follow the advice of Dr.
Nandi, Professor and the Head of Department of Gastro-Intestinal Surgery at
AIIMS. Dr. Nandi had advised placing of feeding tube at a designated place, but
this was not done.
Dr. Bose, Respondent no. 4 stated in his affidavit that there are
three well known alternative methods of food supply of nutrition minimizing any
leakage of enzymes from the pancreas. Any of the alternative methods could be
adopted only after opening the stomach and this is precisely what respondent
no. 4 did, i.e. cleared the area of abscess, dead and other infective tissues
and inserted a second tube for drainage of fluid in the affected area and in
the pancreatic duct. Respondent no. 4 also inserted a second tube connecting
the exterior of the abdomen with the affected part of the pancreas and the
abdomen for drainage and clearance in support of the first tube inserted for
drainage. According to respondent no. 4, this was the best course which could
be done keeping in view the inside status of the stomach of the deceased and
that was done.
The National Commission did not find any merit in this complaint
of the appellants.
Another complaint made by the appellants was with regard to
`Gluteal abscess' which was attributed to `pyogenic meningitis' resulting in
the death of Shri Sharma which was first observed in the Medical College
Hospital at Jodhpur, where the deceased had gone in connection with performing
certain rites in connection with the death of his mother-in-law.
Gluteal abscess was drained by a simple incision. He was discharged from there
on 3.10.1990 with an advice to go to AIIMS, New Delhi and meet Dr. Kuchupillai,
the Endoconologist. According to the doctor, there was not even a whisper of
any incision or draining of gluteal abscess. The Essentiality Certificate makes
it clear that no incision was made to drain out gluteal abscess.
The appellants aggrieved by the judgment and order of the National
Commission filed the present appeal before this court.
This court issued notice and in pursuance to the notice issued by
this court, a counter affidavit on behalf of respondent no.1 has been filed by
Dr. Ranbir Kumar Gupta. It is mentioned in the affidavit that although the
respondents fully sympathized with the appellants' unfortunate loss, the
respondents are constrained to submit that the appellants had presented a
malicious, fabricated and distorted account to create a false impression that
the respondents were guilty of negligence in treating late Shri R.K. Sharma.
The respondents also submitted that the appellants have ignored
the fact that the medicine is not an exact science involving precision and
every surgical operation involves uncalculated risks and merely because a
complication had ensued, it does not mean that the hospital or the doctor was
guilty of negligence. A medical practitioner is not expected to achieve success
in every case that he treats. The duty of the Doctor like that of other
professional men is to exercise reasonable skill and care. The test is the
standard of the ordinary skilled man. It is further submitted in the counter
affidavit that the hospital and the doctors attended late Shri Sharma with
utmost care, caution and skill and he was treated with total devotion and
dedication. Shri Sharma's death was attributable to the serious disease with
which he was suffering from. It is also mentioned that the conduct of the
deceased himself was negligent when he was discharged on 23.6.1990. The doctors
specifically advised him "Regular Medical Follow Up" which the
deceased failed to attend. In fact, subsequently, it was respondent no.4 who
called upon the deceased and persuaded him to visit the Modi Hospital for a
change of dressing. The Fitness Certificate issued to the deceased also bore
the endorsement "he would need prolonged and regular follow up".
However, the deceased did not make any effort and was totally negligent.
According to the affidavit, the deceased was admitted on 18.3.1990
in Batra Hospital. Dr. R.K. Mani recommended certain investigations such as
abdominal Ultrasound, Echo- cardiogram Blood Tests etc. On 20.3.1990, Dr. Mani
ordered a C.T. Scan of the abdomen for a suspected lump in the abdomen. The
C.T. abdomen revealed a large left adrenal mass. Accordingly, the following
note was recorded by Dr.R.K. Mani in the case sheet on 21.3.1990:- "CT
abdomen reveals a large left adrenal mass.
there is a secreting adrenal tumour.
needs full work up re hormonal status and CT Head Scan." The same day Dr.
R.K. Mani referred the case to Dr. C.M. Batra, Endocrinologist and sought Dr.
Batra's opinion on the diagnosis made by him that Anasrarca was attributable to
the Adrenal tumour. Dr. Mani also referred Shri R.K.Sharma to a Dermatologist.
That after reviewing the case Dr. C.M. Batra agreed with Dr. Mani that
Anarsarca was due to the Adrenal Tumour. Dr.Batra was also of the opinion that
the Adrenal Tumour could be due to either Adrenal or Adrenal Carcinoma (i.e.
cancer). Dr. Batra recommended a C.T. Thorax Bone and Skeletol survey.
Dermatologist Dr. Kandhari reported that Shri R.K. Sharma had a fungal
infection. After the reports of all the tests and the report of the hormonal
assays had been received, respondent no.2 came to a confirmed diagnosis that
Shri R.K.Sharma had a secreting adrenal tumour. The patient was informed that
surgery for removal of an adrenal tumour was planned. Appellant no.1 was also
informed that the tumour was suspected to be malignant. Mrs. Kusum Sharma told
respondent no.2 that one of her relations was a doctor working in Jodhpur
Medical College and that she would like to consult him. The said relation of
Smt. Kusum Sharma came down to Delhi, examined Shri R.K.Sharma and went through
all the reports.
Smt. Kusum Sharma gave consent for the surgery. Dr. Kapil Kumar, who
specializes in surgical oncology, i.e., cancer surgery was asked to operate
upon Shri R.K. Sharma. The risk involved in the operation was explained to the
petitioner, her husband (now deceased) and their relative and they agreed after
due consultation with their family doctor."
Shri Sharma was operated on 2.4.1990 by Dr. Kapil Kumar,
respondent no.3 and the adrenal tumour was removed. During surgery it became
necessary to remove the spleen of Shri R.K. Sharma. The operation was
the tail of the pancreas was traumatized during retraction as Shri R.K. Sharma
was extremely obese. On examination, the injury to the pancreas was found to be
superficial and non-ductal. The damage to the pancreas was repaired immediately
with interrupted non-absorbable sutures and drains were placed. The injury to
the pancreas was known during surgery and the same was repaired immediately. It
was clearly recorded in the operation transcript that the body of the pancreas
was damaged on its posterior surface. The said fact was recorded in the
It is submitted that after the surgery Shri R.K. Sharma was
subjected to ultrasound imaging and sonogram. On 26.4.1990 respondent no.2
ordered a CT Scan as he suspected the existence of a pancreatic abscess. The CT
Scan report was suggestive of paripancreatic inflammation and pancreatic
abscess. Thus the CT Scan merely confirmed the suspicion of appellant no.1, the
wife of Shri R.K. Sharma who was well aware of the injury to the pancreas and
the possibility of there being a pancreatic abscess and she had long discussion
with respondent nos.2 and 3 regarding the prognosis. It is denied that the
patient and the appellants were assured that fluid discharge would stop within
2 or 3 days time or that it was normal complication after any surgery.
It is submitted that the tumour mass was sent for biopsy the same
day i.e. 2.4.1990. The histopathology report was received the next day and it
recorded a positive finding of the tumour being malignant. Since cases of
adrenal cancer have a very poor prognosis, six slides were sent to Sir Ganga
Ram Hospital for confirmation. The histopathology report from Sir Ganga Ram
Hospital also indicated cancer of the adrenal gland.
It is admitted that due to the insistence of the patient and the
appellants to seek expert advice of the All India Institute of Medical Science
the patient was referred to Sir Ganga Ram Hospital for E.R.C.P. Test. After the
CT Scan report dated 26.4.1990 confirmed the existence of pancreatic abscess,
on 28.4.1990, respondent nos.2 and 3 sought the advice of Dr. T.K. Bose,
respondent no.4. An E.R.C.P. test and Sonogram were recommended by respondent
no.4 and it was again respondent no.4 who suggested that the opinion of Prof.Nandi
of All India Institute of Medical Sciences be sought.
and Sonogram are sophisticated tests and the patient can hardly be expected to
be aware of such procedures. It is submitted that the E.R.C.P. test confirmed
the initial diagnosis made by respondent nos. 2 and 3 that there being a
leakage from the pancreatic duct and showed the exact site of leakage.
of exact site of leakage is one of the principal functions of the E.R.C.P.
In the counter-affidavit it is specifically denied that the
deceased was dissatisfied with the treatment. In the affidavit, it is mentioned
that Dr. T.K. Bose and Dr. Kapil Kumar adopted the procedure, which in their
opinion was in the best interest of the patient, Shri Sharma.
During the second operation on 23.5.1990 it was found that there
was matting together of proximal jejunal loops (intestinal loops) in the left
infra-colic compartment subjacent to root of transverse mescolon and it was
technically hazardous to do feeding jejunostomy. That is why a deviation was
made. Dr. T.K. Bose and Dr. Kapil Kumar were not obliged to follow every detail
of Dr. Nandi's recommendation as appropriate decisions were to be made in
accordance with the findings at surgery. It would be pertinent to point out
that Dr.Nandi's note was at best a theoretical analysis whereas Dr.Bose was the
man on the spot. Matting of jejunal loops was not known to Dr. Nandi and came
to be known only on the operation table.
It is submitted that the bleeding (hematemsia) was due to stress
ulceration and not due to damage to the stomach by a Nasodudoenal tube. Such
bleeding is quite common after major surgery. It is denied that fundus of the
stomach was damaged during surgery or during placement of the Nasodudoenal tube
as alleged by the appellants. In fact, the site of surgery was nowhere near the
fundus of the stomach.
denied that any procedure adopted by Dr. Bose and Dr. Kapil Kumar in surgery
endangered the life of the patient.
Sharma was discharged as his surgical wounds had healed and his overall
condition was satisfactory.
It is submitted that after his discharge from Batra Hospital on
23.6.1990, Shri R.K. Sharma did not maintain any contact with the answering
respondents till 9.10.1990 barring one visit to respondent no.2 on 31.8.1990
for the purpose of obtaining fitness certificate. The answering respondent
cannot be held responsible for any mishap, which might have taken place when
the deceased Shri R.K. Sharma was being treated elsewhere.
It is further submitted that no request was received by respondent
no.1 from AIIMS for supply of the case sheets or the tumour mass. Had such a
request been received the case sheets would have been sent to AIIMS forthwith.
The tumour mass would also have been sent subject to availability, as generally
the mass is not preserved beyond a period of 4 weeks. As a standard practice,
case sheets are never given to patients as they contain sensitive information
which can affect their psyche.
It is submitted that no malafides can be attributed to the
answering respondents for declining the request of Shri R.K.Sharma for handing
over the entire mass of tumour. Had the mass been available, it would have
definitely been given. As per standard practice, specimens are discarded after
one month and, therefore, the tumour mass was not available and as such could
not be given to Shri R.K. Sharma. All over the world the standard practice is
to preserve slides and to use them for review.
The Histopathology report from Mool Chand Hospital recorded the
presence of Mitosis, which are indicative of malignancy. The Histopathology
reports from Batra Hospital and Sir Ganga Ram Hospital clearly indicated the
presence of malignancy, whereas the report from Mool Chand Hospital did not
specifically indicate whether the tumour was malignant or benign. Rather it was
stated in the report that a follow up was required.
It is submitted that pyrogenic meningitis was most probably the
consequence of gluteal abscess for which the patient had not received any
proper treatment in the proceeding weeks. It was only when the patient was in a
critical condition that he was brought to Batra Hospital.
at that stage the disease of the patient was too far advanced.
It is denied that pyrogenic Meningitis "is swelling in the
brain due to the spoiled surgery and the unhealed wounds inside caused by the
repeated insertions of tubes introducing infections." It is denied that
surgery was spoiled at Batra Hospital. Further when the deceased Shri R.K.
Sharma was discharged, all his wounds had healed. Pyrogenic Meningitis is not
swelling of the brain but inflammation of the covering of the brain. It could
not have been the consequence of the surgery or the pancreatic abscess.
In the discharge summary prepared initially it was recorded
specifically that the adrenal mass was malignant and that the patient should be
started on Mitotane at the earliest after the period of recovery from the operation.
However, the appellants had requested respondent no.2 to delete all references
about cancer from the discharge slip as her husband was likely to read the
same. She apprehended that in such an event her husband would become mentally
disturbed. Having regard to the apprehension expressed by the appellant no.1,
Smt. Kusum Sharma, respondent no.2 prepared a fresh discharge summary which did
not contain any reference to cancer. The diagnosis of cancer was not an
afterthought. The diagnosis of cancer was a considered one after two
histopathological reports were received. It is however denied that the patient
was told that he was suffering from cancer.
It is also denied that Dr. Kapil Kumar lacks experience.
contrary, Dr. Kapil Kumar has impressive credentials and he had undertaken
training in the well known Tata Cancer Hospital at Mumbai and he had adequate
experience in handling such operations.
The learned counsel appearing for the appellants placed reliance
on Spring Meadows Hospital & Another v. Harjot Ahluwalia through K.S.
Ahluwalia & Another (1998) 4 SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr.
Trimbak Bapu Godbole & Anr. AIR 1969 SC 128. According to respondent no.1,
these cases have no application to the present case. The facts in these cases
are entirely different and the law of negligence has to be applied according to
the facts of the case.
According to Halsbury's Laws of England Ed.4 Vol.26 pages 17-18,
the definition of Negligence is as under:- "22. Negligence : Duties owed
to patient. A person who holds himself out as ready to give medical (a) advice
or treatment impliedly undertakes that he is possessed of skill and knowledge
for the purpose.
person, whether he is a registered medical practitioner or not, who is
consulted by a patient, owes him certain duties, namely, a duty of care in
deciding whether to undertake the case: a duty of care in deciding what
treatment to give; and a duty of care in his administration of that treatment
(b) A breach of any of these duties will support an action for negligence by
the patient (c)."
In a celebrated and oftenly cited judgment in Bolam v.Friern
Hospital Management Committee (1957) I WLR 582 :
All ER 118 (Queen's Bench Division - Lord Justice McNair observed.
a doctor is not negligent, if he is acting in accordance with a practice
accepted as proper by a reasonable body of medical men skilled in that
particular art, merely because there is a body of such opinion that takes a
direction that, where there are two different schools of medical practice, both
having recognition among practitioners, it is not negligent for a practitioner
to follow one in preference to the other accords also with American law; See 70
Corpus Juris Secundum (1951) 952, 953, para 44.
it seems that by American law a failure to warn the patient of dangers of
treatment is not, of itself, negligence ibid. 971, para 48).
Justice McNair also observed : Before I turn that, I must explain what in law
we mean by "negligence". In the ordinary case which does not involve
any special skill, negligence in law means this : some failure to do some act
which a reasonable man in the circumstances would do, or doing some act which a
reasonable man in the circumstances would not do; and if that failure or doing
of that act results in injury, then there is a cause of action. How do you test
whether this act or failure is negligent? In an ordinary case, it is generally
said, that you judge that by the action of the man in the street. He is the
ordinary man. In one case it has been said that you judge it by the conduct of
the man on the top of a Clapham omnibus. He is the ordinary man. But where you
get a situation which involves the use of some special skill or competence,
then the test whether there has been negligence or not is not the test of the
man on the top of a Claphm omnibus, becausehe has not got this man exercising
and professing to have that special skill. A man need not possess the highest
expert skill at the risk of being found negligent. It is well-established law
that it is sufficient if her exercises the ordinary skill of an ordinary
competent man exercising that particular art."
Medical science has conferred great benefits on mankind, but these
benefits are attended by considerable risks. Every surgical operation is
attended by risks. We cannot take the benefits without taking risks. Every
advancement in technique is also attended by risks.
In Roe and Woolley v. Minister of Health (1954) 2 QB 66, Lord
Justice Denning said : `It is so easy to be wise after the event and to condemn
as negligence that which was only a misadventure. We ought to be on our guard
against it, especially in cases against hospitals and doctors. Medical science
has conferred great benefits on mankind but these benefits are attended by
unavoidable risks. Every surgical operation is attended by risks. We cannot
take the benefits without taking the risks. Every advance in technique is also
attended by risks. Doctors, like the rest of us, have to learn by experience;
and experience often teaches in a hard way."
It was also observed in the same case that "We must not look
at the 1947 accident with 1954 spectacles:". "But we should be doing
a disservice to the community at large if we were to impose liability on
hospitals and doctors for everything that happens to go wrong. Doctors would be
led to think more of their own safety than of the good of their patients.
Initiative would be stifled and confidence shaken. A proper sense of proportion
requires us to have regard to the conditions in which hospitals and doctors
have to work. We must insist on due care for the patient at every point, but we
must not condemn as negligence that which is only a misadventure.
In Whitehouse v. Jordon & Another (1981) 1 All ER 267 House of
Lords per Lord Edmund-Davies, Lord Fraser and Lord Russell:
test whether a surgeon has been negligent is whether he has failed to measure
up in any respect, whether in clinical judgment or otherwise, to the standard
of the ordinary skilled surgeon exercising and professing to have the special
skill of a surgeon (dictum of McNair Jo. In Bolam v. Friern Hospital Management
Committee (1957) 2 All ER 118 at 121).
In Chin Keow v. Government of Malaysia & Anr.
WLR 813: the Privy Council applied these words of McNair J in Bolam v. Friern
Hospital Management Committee:
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
is the standard of the ordinary skilled man exercising and professing to have
that special skill."
This court in the case of State of Haryana v. Smt.Santra (2000) 5
SCC 182 in the matter of negligence relied upon the case of Bolam v. Friern
Hospital Management Committee (supra) and on Whitehouse v. Jordan & Another
In Poonam Verma v. Ashwin Patel & Ors. (1996) 4 SCC 332 where
the question of medical negligence was considered in the context of treatment
of a patient, it was observed as under:- "40. Negligence has many
manifestations - it may be active negligence, collateral negligence, comparative
negligence, concurrent negligence, continued negligence, criminal negligence,
gross negligence, hazardous negligence, active and passive negligence, wilful
or reckless negligence or Negligence per se."
In the instant case, Dr. Kapil Kumar, respondent no.3 who
performed the operation had reasonable degree of skill and knowledge. According
to the findings of the National Commission, he cannot be held guilty of
negligence by any stretch of imagination.
Negligence per-se is defined in Black's Law Dictionary as under:- Negligence
per-se: - Conduct, whether of action or omission, which may be declared and
treated as negligence without any argument or proof as to the particular
surrounding circumstances, either because it is in violation of a statute or
valid municipal ordinance, or because it is so palpably opposed to the dictates
of common prudence that it can be said without hesitation or doubt that no
careful person would have been guilty of it. As a general rule, the violation
of a public duty, enjoined by law for the protection of person or property, so
In Bolam v. Friern Hospital Management Committee (supra), Lord
McNair said : "..........I myself would prefer to put it this way : A
doctor is not guilty of negligence if he has acted in accordance with a
practice accepted as proper by a responsible body of medical men in that
particular art". In the instant case, expert opinion is in favour of the
procedure adopted by Opposite Party No.3 at the time of Surgery on 2.4.90.
The test is the standard of ordinary skilled man exercising and
professing to have that special skill.
In Roe and Woolley (supra) Lord Denning said:
should be doing a dis-service to the community at large if we were to impose
liability on Hospitals and Doctors for everything that happens to go
Other rulings and judgments also hold and support this view. It is
on these judgments that the Supreme Court has relied to determine negligence or
Judgment in the case of State of Haryana (supra) in the context of
`Negligence per se', is not applicable in the instant case, as herein, there
was no violation of public duty enjoined by law. The term 'negligence' is used
for the purpose of fastening the defendant with liability under the Civil Law
and, at times, under the Criminal Law. It is contended on behalf of the
respondents that in both the jurisdictions, negligence is negligence, and
jurisprudentially no distinction can be drawn between negligence under civil
law and negligence under criminal law.
In R. v. Lawrence,  1 All ER 974 (HL), Lord Diplock spoke
for a Bench of five judges and the other Law Lords agreed with him. He
reiterated his opinion in R. v.Caldwell 1981(1) All ER 961 (HL) and dealt with
the concept of recklessness as constituting mens rea in criminal law. His
Lordship warded against adopting the simplistic approach of treating all
problems of criminal liability as soluble by classifying the test of liability
as being "subjective" or "objective", and said
"Recklessness on the part of the doer of an act does presuppose that there
is something in the circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was capable of
causing the kind of serious harmful consequences that the section which creates
the offence was intended to prevent, and that the risk of those harmful
consequences occurring was not so slight that an ordinary prudent individual
would feel justified in treating them as negligible. It is only when this is so
that the doer of the act is acting 'recklessly' if, before doing the act, he
either fails to give any thought to the possibility of there being any such
risk or, having recognized that there was such risk, he nevertheless goes on to
We are here concerned with the criminal negligence. We have to
find out that the rashness was of such a degree as to amount to taking a hazard
knowing that the hazard was of such a degree that injury was most likely
imminent. The element of criminality is introduced by the accused having run the
risk of doing such an act with recklessness and indifference to the
Lord Atkin in his speech in Andrews v. Director of Public Prosecutions,
 A.C. 576, stated, "Simple lack of care -- such as will constitute
civil liability is not enough; for purposes of the criminal law there are
degrees of negligence;
very high degree of negligence is required to be proved before the felony is
established." Thus, a clear distinction exists between "simple lack
of care" incurring civil liability and "very high degree of
negligence" which is required in criminal cases. Lord Porter said in his
speech in the same case -- "A higher degree of negligence has always been
demanded in order to establish a criminal offence than is sufficient to create
civil liability. (Charlesworth & Percy on Negligence (10th Edn., 2001) Para
The aforementioned statement of law in Andrews's case (supra) has
been noted for approval by this court in Syad Akbar v. State of Karnataka
(1980) 1 SCC 30. This court has dealt with and pointed out with reasons the
distinction between negligence in civil law and in criminal law. The court opined
that there is a marked difference as to the effect of evidence, viz. the proof,
in civil and criminal proceedings. In civil proceedings, a mere preponderance
of probability is sufficient, and the defendant is not necessarily entitled to
the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as convinces the mind
of the Court, as a reasonable man, beyond all reasonable doubt. Where
negligence is an essential ingredient of the offence, the negligence to be
established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
A three-Judge Bench of this court in Bhalchandra alias Bapu &
Another v. State of Maharashtra AIR 1968 SC 1319 has held that while negligence
is an omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do;
criminal negligence is the gross and culpable neglect or failure to exercise
that reasonable and proper care and precaution to guard against injury either
to the public generally or to an individual in particular, which having regard
to all the circumstances out of which the charge has arisen, it was the
imperative duty of the accused person to have adopted.
This court in a landmark judgment in Jacob Mathew v.State of
Punjab & Another (2005) 6 SCC 1 while dealing with the case of negligence
by professionals also gave illustration of legal profession. The court observed
as under:- "18. In the law of negligence, professionals such as lawyers,
doctors, architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any task which is
required to be performed with a special skill would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for
performing that task. Any reasonable man entering into a profession which requires
a particular level of learning to be called a professional of that branch,
impliedly assures the person dealing with him that the skill which he professes
to possess shall be exercised and exercised with reasonable degree of care and
caution. He does not assure his client of the result.
does not tell his client that the client shall win the case in all
circumstances. A physician would not assure the patient of full recovery in
every case. A surgeon cannot and does not guarantee that the result of surgery
would invariably be beneficial, much less to the extent of 100% for the person
operated on. The only assurance which such a professional can give or can be
understood to have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he would be exercising
his skill with reasonable competence. This is all what the person approaching
the professional can expect.
this standard, a professional may be held liable for negligence on one of two
findings: either he was not possessed of the requisite skill which he professed
to have possessed, or, he did not exercise, with reasonable competence in the
given case, the skill which he did possess. The standard to be applied for
judging, whether the person charged has been negligent or not, would be that of
an ordinary competent person exercising ordinary skill in that profession. It
is not necessary for every professional to possess the highest level of
expertise in that branch which he practices. In Michael Hyde and Associates v.
J.D. Williams & Co. Ltd. ,  P.N.L.R. 233, CA, Sedley L.J. said that
where a profession embraces a range of views as to what is an acceptable
standard of conduct, the competence of the defendant is to be judged by the
lowest standard that would be regarded as acceptable.
worth & Percy, ibid, Para 8.03)"
In Jacob Mathew's case, this court heavily relied on the case of
Bolam (supra). The court referred to the opinion of McNair, J. defining
negligence as under:- "19.Where you get a situation which involves the use
of some special skill or competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of a Clapham omnibus,
because he has not got this special skill.
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;
well established law that it is sufficient if he exercises the ordinary skill
of an ordinary competent man exercising that particular art."
In Eckersley v. Binnie, Bingham, L.J. summarized the Bolam test in
the following words :- "From these general statements it follows that a
professional man should command the corpus of knowledge which forms part of the
professional equipment of the ordinary member of his profession.
not lag behind other ordinary assiduous and intelligent members of his profession
in knowledge of new advances, discoveries and developments in his field. He
should have such an awareness as an ordinarily competent practitioner would
have of the deficiencies in his knowledge and the limitations on his skill. He
should be alert to the hazards and risks in any professional task he undertakes
to the extent that other ordinarily competent members of the profession would
be alert. He must bring to any professional task he undertakes no less
expertise, skill and care than other ordinarily competent members of his
profession would bring, but need bring no more.
standard is that of the reasonable average. The law does not require of a
professional man that he be a paragon combining the qualities of polymath and
prophet." (Charles worth & Percy, ibid, Para 8.04)
The degree of skill and care required by a medical practitioner is
so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35):- "The
practitioner must bring to his task a reasonable degree of skill and knowledge,
and must exercise a reasonable degree of care. Neither the very highest nor a
very low degree of care and competence, judged in the light of the particular
circumstances of each case, is what the law requires, and a person is not
liable in negligence because someone else of greater skill and knowledge would
have prescribed different treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art,
even though a body of adverse opinion also existed among medical men.
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."
In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord Denning
speaking for the court observed as under:- "a medical practitioner was not
to be held liable simply because things went wrong from mischance or
misadventure or through an error of judgment in choosing one reasonable course
of treatment in preference of another. A medical practitioner would be liable
only where his conduct fell below that of the standards of a reasonably
competent practitioner in his field."
In another leading case Maynard v. West Midlands Regional Health
Authority the words of Lord President (Clyde) in Hunter v. Hanley 1955 SLT 213
were referred to and quoted as under:- "In the realm of diagnosis and
treatment there is ample scope for genuine difference of opinion and one man
clearly is not negligent merely because his conclusion differs from that of
other professional men...The true test for establishing negligence in diagnosis
or treatment on the part of a doctor is whether he has been proved to be guilty
of such failure as no doctor of ordinary skill would be guilty of if acting
with ordinary care...".
per Lord Scarman added as under:- "A doctor who professes to exercise a
special skill must exercise the ordinary skill of his specialty.
of opinion and practice exist, and will always exist, in the medical as in
seldom any one answer exclusive of all others to problems of professional
judgment. A court may prefer one body of opinion to the other, but that is no
basis for a conclusion of negligence."
The ratio of Bolam's case is that it is enough for the defendant
to show that the standard of care and the skill attained was that of the
ordinary competent medical practitioner exercising an ordinary degree of
that the respondent charged with negligence acted in accordance with the
general and approved practice is enough to clear him of the charge. Two things
are pertinent to be noted. Firstly, the standard of care, when assessing the
practice as adopted, is judged in the light of knowledge available at the time
(of the incident), and not at the date of trial. Secondly, when the charge of
negligence arises out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that point of time
on which it is suggested as should have been used.
A mere deviation from normal professional practice is not
necessarily evidence of negligence.
In Jacob Mathew's case (supra) this court observed that higher the
acuteness in emergency and higher the complication, more are the chances of
error of judgment. The court further observed as under:- "25......At
times, the professional is confronted with making a choice between the devil
and the deep sea and he has to choose the lesser evil. The medical professional
is often called upon to adopt a procedure which involves higher element of
risk, but which he honestly believes as providing greater chances of success
for the patient rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to follow, would depend on
the facts and circumstances of a given case. The usual practice prevalent
nowadays is to obtain the consent of the patient or of the person in-charge of
the patient if the patient is not be in a position to give consent before
adopting a given procedure. So long as it can be found that the procedure which
was in fact adopted was one which was acceptable to medical science as on that
date, the medical practitioner cannot be held negligent merely because he chose
to follow one procedure and not another and the result was a failure."
A doctor faced with an emergency ordinarily tries his best to
redeem the patient out of his suffering. He does not gain anything by acting
with negligence or by omitting to do an act.
therefore, it will be for the complainant to clearly make out a case of
negligence before a medical practitioner is charged with or proceeded against
criminally. This court in Jacob Mathew's case very aptly observed that a
surgeon with shaky hands under fear of legal action cannot perform a successful
operation and a quivering physician cannot administer the end-dose of medicine
to his patient.
Doctors in complicated cases have to take chance even if the rate
of survival is low.
The professional should be held liable for his act or omission, if
negligent, is to make life safer and to eliminate the possibility of recurrence
of negligence in future. But, at the same time courts have to be extremely
careful to ensure that unnecessarily professionals are not harassed and they
will not be able to carry out their professional duties without fear.
It is a matter of common knowledge that after happening of some
unfortunate event, there is a marked tendency to look for a human factor to
blame for an untoward event, a tendency which is closely linked with the desire
to punish. Things have gone wrong and, therefore, somebody must be found to
answer for it. A professional deserves total protection. The Indian Penal Code
has taken care to ensure that people who act in good faith should not be
punished. Sections 88, 92 and 370 of the Indian Penal Code give adequate
protection to the professional and particularly medical professionals.
The Privy Council in John Oni Akerele v. The King AIR 1943 PC 72
dealt with a case where a doctor was accused of manslaughter, reckless and
negligent act and he was convicted. His conviction was set aside by the House
of Lords and it was held thus:- (i) That a doctor is not criminally responsible
for a patient's death unless his negligence or incompetence went beyond a mere
matter of compensation between subjects and showed such disregard for life and
safety of others as to amount to a crime against the State.;
the degree of negligence required is that it should be gross, and that neither
a jury nor a court can transform negligence of a lesser degree into gross
negligence merely by giving it that appellation.... There is a difference in
kind between the negligence which gives a right to compensation and the
negligence which is a crime.
is impossible to define culpable or criminal negligence, and it is not possible
to make the distinction between actionable negligence and criminal negligence
intelligible, except by means of illustrations drawn from actual judicial
opinion....The most favourable view of the conduct of an accused medical man
has to be taken, for it would be most fatal to the efficiency of the medical
profession if no one could administer medicine without a halter round his
In the said case, their Lordships refused to accept the view that
criminal negligence was proved merely because a number of persons were made
gravely ill after receiving an injection of Sobita from the appellant coupled
with a finding that a high degree of care was not exercised. Their Lordships also
refused to agree with the thought that merely because too strong a mixture was
dispensed once and a number of persons were made gravely ill, a criminal degree
of negligence was proved.
This court in Kurban Hussein Mohammedali Rangawalla v. State of
Maharashtra (1965) 2 SCR 622, while dealing with Section 304A of IPC, the
following statement of law by Sir Lawrence Jenkins in Emperor v. Omkar
Rampratap (1902) 4 Bom LR 679, was cited with approval:- "To impose
criminal liability under Section 304A, Indian Penal Code, it is necessary that
the death should have been the direct result of a rash and negligent act of the
accused, and that act must be the proximate and efficient cause without the
intervention of another's negligence. It must be the causa causans; it is not
enough that it may have been the causa sine qua non."
In Dr. Laxman Balkrishna Joshi (supra), the court observed that
the practitioner must bring to his task a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very
highest nor a very low degree of care and competence judged in the light of the
particular circumstances of each case is what the law requires. The doctor no
doubt has a discretion in choosing treatment which he proposes to give to the
patient and such discretion is relatively ampler in cases of emergency. In this
case, the death of patient was caused due to shock resulting from reduction of
the fracture attempted by doctor without taking the elementary caution of
giving anaesthetic to the patient. The doctor was held guilty of negligence and
liability for damages in civil law. We hasten to add that criminal negligence
or liability under criminal law was not an issue before the Court - as it did
not arise and hence was not considered.
In a significant judgment in Indian Medical Association v. V.P.
Shantha & Others (1995) 6 SCC 651, a three-Judge Bench of this Court held
that service rendered to a patient by a medical practitioner (except where the
doctor renders service free of charge to every patient or under a contract of
personal service), by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of `service' as defined in
Section 2(1)(o) of the Consumer
Protection Act, 1986. Deficiency in service has to be
judged by applying the test of reasonable skill and care which is applicable in
action for damages for negligence.
In the said case, the court also observed as under:- "22. In
the matter of professional liability professions differ from occupations for
the reason that professions operate in spheres where success cannot be achieved
in every case and very often success or failure depends upon factors beyond the
professional man's control. In devising a rational approach to professional
liability which must provide proper protection to the consumer while allowing
for the factors mentioned above, the approach of the Courts is to require that
professional men should possess a certain minimum degree of competence and that
they should exercise reasonable care in the discharge of their duties. In
general, a professional man owes to his client a duty in tort as well as in
contract to exercise reasonable care in giving advice or performing services.
(see: Jackson and Powell on Professional Negligence, 3rd Edn. paras 1-04,1-05
In Achutrao Haribhau Khodwa & Others v. State of Maharashtra
& Others (1996) 2 SCC 634, this Court noticed that in the very nature of
medical profession, skills differs from doctor to doctor and more than one
alternative course of treatment are available, all admissible. Negligence cannot
be attributed to a doctor so long as he is performing his duties to the best of
his ability and with due care and caution. Merely because the doctor chooses
one course of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the medical
In Spring Meadows Hospital & Another (supra), the court
observed that an error of judgment is not necessarily negligence. In Whitehouse
(supra) the court observed as under:- "The true position is that an error
of judgment may, or may not, be negligent, it depends on the nature of the
error. If it is one that would not have been made by a reasonably competent
professional man professing to have the standard and type of skill that the
defendant holds himself out as having, and acting with ordinary care, then it
is negligence. If, on the other hand, it is an error that such a man, acting
with ordinary care, might have made, then it is not negligence."
In Jacob Mathew's case (supra), conclusions summed up by the court
were very apt and some portions of which are reproduced hereunder:- (1)
Negligence is the breach of a duty caused by omission to do something which a
reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do.
definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act or omission
amounting to negligence attributable to the person sued. The essential
components of negligence are three: 'duty', 'breach' and 'resulting damage'.
Negligence in the context of medical profession necessarily calls for a
treatment with a difference. To infer rashness or negligence on the part of a
professional, in particular a doctor, additional considerations apply. A case
of occupational negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident, is not proof of
negligence on the part of a medical professional. So long as a doctor follows a
practice acceptable to the medical profession of that day, he cannot be held
liable for negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor would not
have chosen to follow or resort to that practice or procedure which the accused
standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not possible for every professional to
possess the highest level of expertise or skills in that branch which he
practices. A highly skilled professional may be possessed of better qualities,
but that cannot be made the basis or the yardstick for judging the performance
of the professional proceeded against on indictment of negligence.
To prosecute a medical professional for negligence under criminal
law it must be shown that the accused did something or failed to do something
which in the given facts and circumstances no medical professional in his
ordinary senses and prudence would have done or failed to do. The hazard taken
by the accused doctor should be of such a nature that the injury which resulted
was most likely imminent.
In a relatively recent case in C.P. Sreekumar (Dr.), MS (Ortho) v.
S. Ramanujam (2009) 7 SCC 130 this court had an occasion to deal with the case
of medical negligence in a case in which the respondent was hit by a
motor-cycle while going on his by-cycle sustained a hairline fracture of the
neck of the right femur.
Pre-operative evaluation was made and the appellant Dr. Sreekumar,
on considering the various options available, decided to perform a
hemiarthroplasty instead of going in for the internal fixation procedure. The
respondent consented for the choice of surgery after the various options have
been explained to him. The surgery was performed the next day.
respondent filed a complaint against the appellant for medical negligence for
not opting internal fixation procedure.
court held that the appellant's decision for choosing hemiarthroplasty with
respect to a patient of 42 years of age was not so palpably erroneous or
unacceptable as to dub it as a case of professional negligence.
On scrutiny of the leading cases of medical negligence both in our
country and other countries specially United Kingdom, some basic principles
emerge in dealing with the cases of medical negligence. While deciding whether
the medical professional is guilty of medical negligence following well known
principles must be kept in view:- I. Negligence is the breach of a duty
exercised by omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man would not do.
Negligence is an essential ingredient of the offence. The negligence to be
established by the prosecution must be culpable or gross and 50 not the
negligence merely based upon an error of judgment.
medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care.
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.
medical practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.
V. In the
realm of diagnosis and treatment there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
medical professional is often called upon to adopt a procedure which involves
higher element of risk, but which he honestly believes as providing greater
chances of success for the patient rather than a procedure involving lesser
risk but higher chances of failure. Just because a professional looking to the
gravity of illness has taken higher element of risk to redeem the patient out
of his/her suffering which did not yield the desired result may not amount to
Negligence cannot be attributed to a doctor so long as he performs his duties
with reasonable skill and competence. Merely because the doctor chooses one
course of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the medical
would not be conducive to the efficiency of the medical profession if no Doctor
could administer medicine without a halter round his neck.
IX. It is
our bounden duty and obligation of the civil society to ensure that the medical
professionals are not unnecessary harassed or humiliated so that they can
perform their professional duties without fear and apprehension.
medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurizing the medical
professionals/hospitals particularly private hospitals or clinics for
extracting uncalled for compensation. Such malicious proceedings deserve to be
discarded against the medical practitioners.
medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the
patients. The interest and welfare of the patients have to be paramount for
the medical professionals.
In our considered view, the aforementioned principles must be kept
in view while deciding the cases of medical negligence. We should not be
understood to have held that doctors can never be prosecuted for medical
negligence. As long as the doctors have performed their duties and exercised an
ordinary degree of professional skill and competence, they cannot be held
guilty of medical negligence. It is imperative that the doctors must be able to
perform their professional duties with free mind.
When we apply well settled principles enumerated in the preceding
paragraphs in dealing with cases of medical negligence, the conclusion becomes
irresistible that the appellants have failed to make out any case of medical
negligence against the respondents.
The National Commission was justified in dismissing the complaint
of the appellants. No interference is called for. The appeal being devoid of
any merit is dismissed. In view of the peculiar facts and circumstances of this
case the parties are directed to bear their own costs.
.................................J.(Harjit Singh Bedi)