Bombay Hospital & Medical Research Centre v. Asha Jaiswal & Ors.
HEMANT GUPTA, J.
1. The present appeals are directed against an order passe d by
the National Consumer Disputes Redressal Commission1 on 06.01.2010
against the appellants i.e., Bombay Hospital & Medical Research Centre2
and Dr. C. Anand Somaya3, directing to pay a sum of Rs. 14,18,491/-
along with interest @ 9% p.a. from the date of filing of the complaint till
the date of payment.
2. The complaint was filed before the Commission by the l egal
heirs4 of the deceased - patient Dinesh Jaiswal 5, alleging medical
negligence on the part of the Hospital and the Doctor in tr eating the
1 For short, the ‘Commission’
2 For short, the ‘Hospital’
3 For short, the ‘Doctor’
4 For short, the ‘Complainant’
5 For short, the ‘patient’
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patient.The patient was admitted tothe Hospital on 22.04 .1998 and
breathed his last on 12.06.1998. The Hospital charged a sum of Rs .
4,08,800/- for the treatment of the patient during the period of his admission
in the Hospital. The said amount is included in and is part of the amount
of compensation awarded against the appellants herein.
3. The patient was taking treatment since 1990 for ha ving
difficulties in walking due to the pain and discomfort in legs. F or his
complaint of inability to walk, a Colour Doppler Test was conducted on
13.04.1998 at Khemuka X-Ray & Ultrasound Clinic, Nagpur which
detected the following:
“Aneurismal dilatation of the lower abdominal aorta just abov e
bifurcation is seen. The aneurism measures 5.4 x 2. 6 in its
maximum dimensions.
Irregular thrombus is seen within the aneurism on colour fl ow
studies.
Prostate is normal in echo – pattern and measures 4 x 3 x 3cms.
Prostatic capsule is intact. Urinary bladder is normal in capacity
and contour. Post void residual urine is not significant.
Impression: Mild hepatomegaly with aneurism of lower abdominal
aorta just above the bifurcation.”
4. Dr. K.G. Deshpande Memorial Center, Nagpur was consulted
by the patient on 15.04.1998 and Dr. Deshpande diagnosed the following:
“A case of Abd Aortic Aneurysum
Involvement on left side
with Left PVB (Embolism)
H/O Trauma 1983,
Pain Left LL 1990 S/O Embolism
Vascular Duplex Seen S/O Large Abd. A. Aneurysum
6*3*5.1cm
Adv- Urgent Surgical repair of the aneurysum”
5. After diagnosis, Dr. Deshpande referred the patient to the
appellant-Doctor who is a Vascular Surgeon. The patient consulted the
appellant-Doctor on 21.4.1998. The Doctor ordered the admission of
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
the patient as an urgent case of aorta aneurysum. On 22.4.1998, the
Doctor advised urgent DSA/CAT Scan [Digital Sub-Traction Angiography
and Computerized Axial Tomography] and surgery after notic ing the
following physical conditions:
“A 42 years old male with aorta pain left lower limb and right leg
below knee.Gradual Claudication
BP – 100/80
Ischaemic changes both lower limbs. Seen with impen ding
Gangrene
Both legs left muscles are tested.
………………………………….”
6. The Doctor after examining the patient recorded that there
were ischemic changes in both lower limbs and also noted an impending
gangrene. Subsequent to the pre-operative preparations, surger y was
conducted on 23.04.1998 by a team of surgeonsincluding Dr.Partha and
Dr. Bindra, led by the appellant-Doctor. The operation notes read as
thus:
“On inspection there was a huge aneurysum on the latral aspect
on left side arising infra renal.
It was densely adherent to the surrounding structur e. The
aneurysum was directed out. The tape was passed around the
left Renal artery/vein for retraction. A tape was passed ar ound
the aorta just below the renal artery and above the aneurys um.
Both the common iliac arteries were exposed. Tapes were passed
around both the iliac arteries.
After achieving proper exposure/slinging around all the vessels.
The aorta was iron clamped just infra-renally. The aneurys um
opened out. The aorta transected and both illiacs transected. ( A
PTFE ‘Y’ Limb Graft) was sutured in place. The short main limb
to the aorta using continuous prolure and both the limbs of the
graft were sutured to the common iliacs end to end anastomosis
on right side. After checking the flow in the graft after suture the
upper end the lower anastomosis were done.
On the left side, the side of the graft was sutured the e nd of the
common iliac. The limb of the graft further brought down through
1125
a tunnel to the femoral artery and the end of the graft sutured to
the side of the femoral artery.
After achieving proper haemostasis and checking the pulsation.
Intra-operatively, the abdomen closed using drainage tubes.
The patient was later shifted to recovery room on ventilator with
stable vital signs.”
7. It is the case of the complainant that on 24.4.1998 at about 4
am, that is the night after surgery, the nurse who was attending the
patient observed that the pulsation of the patient had become feeble and
body temperature was low and the lower limbs had gone cold. The relatives
were informed at about 7 a.m. that the patient was unconscious, legs
were cold with no pulsation. The complainant further allege d that the
nurse had informed the Doctor at 4 am but he came only at 9.30 a.m.
The patient upon assessment by the Doctor was directed to get second
DSA test but DSA machine was out of order. Hence, the Doctor advised
angiography but the patient was made to wait for both DSA test as well
as for angiography. One Dr. B.K. Goyal examined the pati ent and
reported that the patient had probably developed block of abd ominal
aorta.
8. The angiography conducted at 12.30 pm on 24.4.1998 showed
a block (clot) at the graft due to which the blood supply to t he lower
limbs had totally stopped. The complainant contended that the ea rlier
surgery was not performed correctly and there was n egligence in
conducting the same. A decision was taken to re-explore the earlier
surgery done at about 3:30 pm but since all the four operation theatres
were occupied, he could only be taken to the operation theatr e for re-
grafting at 5.30 p.m. As there was no pulsation in the graft a nd there
was clot in the graft extending into both limbs of the graft, a fresh graft
was sutured and the patient was shifted to recovery room and p ut on
ventilator.
9. It was contended by the Hospital that the patient was in the
care of qualified doctors such as Dr. Nemish Shah, Dr. J. A .Pachore,
Dr. A.L. Kripalani, Dr. Partha, Dr. H.S. Bindra and many others
throughout his course of admission and no stone was left unturned to
ascertain the complications and treat the same. Various specialist doctors
were treating the patient and medicines/treatment was timely regulated
and changed as and when required on a daily basis. Regular daily dialysis,
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
dressing of wounds etc. were also done. However, unfortunately, despite
the best efforts of the qualified doctors, the patient did not respond to the
treatment and passed away on 12.06.1998.
10. The complainant in the complaint enumerated the facts
suggesting negligence and deficiency of service on the pa rt of the
appellants. The averments made by the complainant a nd the
corresponding reply by the Doctor is extracted hereinunder:
1127BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
1129BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
11. The affidavit of the complainant is on the same lines as the
averments made in the complaint before the Commission.
12. The grievance of the complainant against the appellants can
be summarized under the following heads:
(a) The Doctor had not examined the patient after surgery;
(b) The patient was made to stand in queue for DSA test despite
his critical condition whereafter the machine was found to
be dysfunctional;
(c) Angiography was performed after 8 hours of discovering
that blood supply has stopped;
(d) The Hospital delayed treatment by 12 hours as no operation
theatre was available;
1131
(e) The Doctor did not attend the patient and left him i n the
care of inexperienced doctors;
(f) Doctor failed to amputate legs on time on account o f
gangrene and did not try to treat the gangrene; and
(g) The reliance on the principle of res ipsa loquitor to support
the finding that it is a case of medical negligence.
13. Learned Commission while analyzing the evidence observed
that the complainant had filed evidence affidavits but the Hospital and
the Doctor, though have filed their written versions, but have not filed
evidence by way of affidavits except an affidavit of Dr. Kripalani. We
however find at the outset that such primary observ ation is itself
erroneous. The Hospital and the Doctor had filed their written version
by way of affidavit dated 7.1.2000 i.e., the same date on which Dr .
Kripalani had filed an affidavit. The Commission has overlooke d the
fact that written version is by way of an affidavit. Lat er, the Hospital
had also filed evidence affidavit on 13.07.2009 whereas the Doctor had
filed a short affidavit on 30.8.2009 reiterating and co nfirming the
statements, averments and the contentions raised in the written version
filed on 7.1.2000. Thus, there is factual error in t he order of the
Commission.
14. The Commission had commented adversely against the Doctor
that he had not seen or attended the patient for several days befo re his
departure for his tour to U.S.A and U.K for about a month and had not
even indicated the name of any super specialist in his field who should
look after the patient in his absence. The Commission menti oned that
the Doctor observed at the first instance within a couple of days of
admission at the Hospital that there was impending gangre ne and that
Dr. Partha and Dr. Bindra did not take timely decision for amputation of
legs and by the time Dr. Pachore was consulted, it was too late. Moreover,
it was also noted that Dr. Pachore had scolded Dr. Partha for the delay
in consulting him as even if the amputation was done at s uch belated
occasion, nothing could be said about the survival of the patient.
15. The Commission opined that considering the conditions in India,
it is very difficult to secure the presence of an expert doctor to file an
affidavit against another expert doctor and thus it would be a case of res
ipsa loquitor. It was mentioned that though the Doctor was present at
Mumbai from 29.4.1998 to 9.5.1998, he did not give advice for amputation
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
of the legs and thereafter from 9.5.1998 to 7.6.1998, he went to U.S.A
and U.K to attend medical conferences. He had visited the patient only
on 8.6.1998 after several days of amputation. The Commission rel ied
upon judgment in Whitehouse v. Jordanand Anr.6 to apply the principle
of res ipsa loquitor. A reference was also made to an article “Repair of
Infraneral Abdominal Aortic Aneurysms (AAAs): Introduction” to say
that the mortality associated with repair of AAAs has been greatly reduced
by improvements in preoperative evaluation and perioperative care.
Another text book by Robert B. Rutherford was referred to notethat
paraplegia was a rare complication in the case of Aneury sms whereas
in the present matter, paraplegia occurred instantaneously.
16. Learned counsel for the appellants herein argued that the
Hospital is a renowned hospital having four operation theatres and advance
machines including DSA. Three other hospitals in Mumbai such as Jaslok
Hospital, Hinduja Hospital and Breach Candy Hospital alone had DSA
machines at the relevant time.The Hospital in its affidavit had inter alia
mentioned that the DSA test is not a bed side test. The patient has to be
carefully shifted to the cardiac cauterization department where the DSA
machine was installed. The patient hence had to be stabilized before he
was shifted to DSA department. Since the patient was put on ventilator
and on several support medications, it was not possible to immediately
undergo the DSA test. But when the patient was taken for DSA test, the
machine developed certaintechnical problem. Since the DSA machine
was not working, angiography was thought to be the best possible test
and was thus conducted. The Hospital had specialized staffin all branches
of medicine and the medical assistance as was required fr om time to
time including nephrology, orthopedics etc. was provided to the patient.
It was argued that the professional competence of Doctor has not been
doubted even by the Commission but two factors have been taken against
the Doctor for holding him negligent; first, that he did not visit the patient
soon after the surgery till 9/9.30 a.m. on the next day to verify the blood
flow after the surgery, and second, he did not visit the patie nt from
29.4.1998 to 9.5.1998 when he was in Mumbai and from 9.5.1998 to
7.6.1998 when he went abroad for attending medical conferences.
17. We do not find that the basis of finding the Doctor negligent in
providing medical care is sustainable as there are both legal and factual
errors in the findings recorded by the Commission.
6 [1981] 1 Weekly Law Reports 246
1133
18. Dr. K.G. Deshpande had referred the patient to the Doctor on
15.4.1998 with advice of urgent surgical repair of Aneurysum. The patient
had taken another six days to consult Doctor at Mumbai and it was only
on 21.4.1998 that the patient was examined by the Doctor and was
advised immediate Aneurysmectomy in view of the impending gangrene.
Therefore, gangrene was not found to be impending after few days of
admission to the Hospital but even before the patient was admitted. The
patient was in critical condition when the Doctor was consu lted on
21.4.1998 and surgery was thereafter performed within two days.
19. Further, the non-working of the DSA machine and consequent
delay in performing the test cannot be said to be negligence on the part
of the Doctor or the Hospital. The DSA machine is a large, e xpensive
and complicated machine which unfortunately developed certain technical
problem at the time when patient had to be tested. Any machine can
become non-functional because of innumerable factors beyond the human
control as the machines involve various mechanical, elect rical and
electronic components. The DSA test was conducted in the Hospital on
22.4.1998 and hence DSA machine cannot be said to be dysfunctional
for a long time. The alternative process to determine the blood flow was
carried out by angiography and the decision for re-exploration was taken
at 12.30 p.m. No fault can be attached to the Hospital if the o peration
theatres were occupied when the patient was taken for surgery. Operation
theatres cannot be presumed to be available at all time s. Therefore,
non-availability of an emergency operation theatre during the period when
surgeries were being performed on other patients is not a valid ground to
hold the Hospital negligent in any manner.
20. The re-exploration of operative notes dated 24.4.1998 shows
that a fresh graft was sutured in place after establis hing the flow. The
patient was then put on ventilator and shifted to recovery room. On
25.4.1998, a note by Dr. Bindra indicated that the patient was see n by
Dr. Shruti. It was noted that there wasno movement in both the legs but
had pin prick sensation and below mid-thigh, sensation was present on
the lower limbs. Further, legs were warm till the ankl es and the feet
were cold. On 27.4.1998, Dr. H.S. Bindra had sought consultation from
Dr. Khadilkar giving case history that limbs were warm and that the
patient had pain in the lumber region and was also feeling tightness in
both the lower limbs. Dr. Khadilkar noted his impressions th at it was
very likely lower spinal cord/conus syndrome and thereafte r advised
MRI of the lower cervical spine and till then to continue with the medicine
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
pentosiflin and lomodex and for muscle ischemia – hig h CK and
Myoglobulin. Dr. Khadilkar suggested the same treatment to continue
on 28.4.98. On 29.4.1998, Dr. Khadilkar had reported the sensory level
dropped to upper 1/3rd of the thigh and that there was no power in limbs.
No changes were however seen in the MRI report. It was also reported
that probably myonecrosis was playing more significant role in the
weakness.The patient was put on dialysis thereafter.
21. The patient was examined by Dr. Kripalani or his unit from
1.5.1998 and thereafter formany days till 23.5.1998. The dialysis was
being conducted in the meantime as well. The patient was being
monitored by Dr. Bindra throughout. Subsequently, the pati ent was
referred to Dr. Amarapurkaron 12.5.1998when it was noted that Ischemic
Injury to liver needed no treatment on 13.5.1998.The patient was then
referred to Dr. Amin for enternal nuirisim on 16.5.1998.
22. It was further noted on 18.05.1998 from Colour Flow Imaging
of limb arteries that both common femoral, superficial fe moral and
popliteal arteries werepatent. The flow in both posterior tibial arteries
was of low velocity and of venous type, suggesting refilled flow. Dr.
Pachore also examined the patient on 27.5.1998 and observed that t he
patient had wet gangrene below knee and was thus advised amputation.
On 29.5.1998, the patient was operated for amputation below the knee
at the level of tibial tuberosity for treatment of wet g angrene and the
Bilateral Guillatine Amputation was carried out. On 30.05.1998, it was
noted that the acute renal failure was improving. Further septicemia
was diagnosed on 30.05.1998. Later, on 12.06.1998, the patient was put
on ventilator and he subsequently passed away at 9.30 pm due to
septicemic shock.
23. It is to be noted that it is not the case of the complainant that
Doctor was not possessed of requisite skill in carrying out the operation.
In fact, the patient was referred to him by Dr. Deshpande keeping in
view the expertise of the Doctor in vascular surgery. There is no proof
that there was any negligence in performing the surgery on 23.4.1998 or
in the process of re-exploration on 24.4.1998. The allegation is of failure
of the Doctor to take the follow-up action after surgery on 23.4.1998, a
delayed decision to amputate the leg subsequent to re-explorat ion on
24.4.1998,and the alleged undue foreign visit of the Doctor.
24. In respect to such contention of the Doctor being on a foreign
visit, it is well known a medical professional has to upgrade himself with
1135
the latest development in his field which may require hi m to attend
conferences held both in and outside the country. Mere fact that the
Doctor had gone abroad cannot lead to an inference of medical negligence
as the patient was admitted in a hospital having speciali sts in multi-
faculties. Two doctors from the unit of the Doctor namely Dr. Bindra
and Dr. Partha, both post graduates, were present to attend to the patient.
Moreover, as per the stand of the Hospital and the Doctor, t he patient
was kept in Cardio Vascular Intensive Care Unit after th e surgery and
was continuously being monitored by qualified post-graduate doctors
including Dr. Nemish Shah, Head of Cardio Vascular Surgery. The patient
was even attended by other specialist doctors as well whic h is evident
from the brief summary of treatment given to the patient. The experts in
the other fields have been consulted from time to time and the treatment
was modulated accordingly. In spite of the treatment, if the patient had
not survived, the doctors cannot be blamed as even the doctors with the
best of their abilities cannot prevent the inevitable.
25. The blood was flowing properly soon after the surgery but
later the formation of clot was confirmed after the angiography test was
conducted at 12.30 p.m. An immediate decision was taken for re-
exploration at 3.30 p.m. The allegation of delay in treatment after the
surgery seems to be baseless as the patient was being a dministered
antibiotics like Metrogyl 400 and Piperacillin Injection which are used
for treatment in gangrene. Dr. Kripalani in his affidavit denied the
allegation leveled by the complainant. Dr. Kripalani had treated patient
continuously including carrying out the dialysis. In respect of the allegation
that doctors failed to amputate legs on time, efforts were being made to
save the limbs as amputation is considered as the last resort. The
amputation was done as per the advice of Dr. Pachore. In the pr esent
era of super-specialization, one doctor is not a solution for all problems
of a patient. Each problem is dealt with by an expert in the concerned
field and that is what is apparent from the medical record. The stand of
the complainant is that since surgery was performed by a doctor, he
alone would be responsible for different aspects of the treatment required
and given to the patient. However, it is an incorrect assumpti on to be
made.
26. It is a case where the patient was in serious condition impending
gangrene even before admission to the Hospital but even after surgery
and re-exploration, if the patient does not survive, the fault cannot be
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
fastened on the doctors as a case of medical negligence. It is too much
to expect from a doctor to remain on the bed side of the patient throughout
his stay in the hospital which was being expected by the complainant
here. A doctor is expected to provide reasonable care which is not proved
to be lacking in any manner in the present case.
27. The sole basis of finding of negligence against the Hospital is
of res ipsa loquitor. It is to be noted that res ipsa loquitor is a rule of
evidence. This Court in a judgment reported as Syad Akbar v. State of
Karnataka7 explained the principle in a criminal trial as under:
“19. As a rule, mere proof that an event has happened or a n
accident has occurred, the cause of which is unknown, is not
evidence of negligence. But the peculiar circumstances constituting
the event or accident, in a particular case, may themselves proclaim
in concordant, clear and unambiguous voices the negligence of
somebody as the cause of the event or accident. It is to suc h
cases that the maxim res ipsa loquitur may apply, if the cause of
the accident is unknown and no reasonable explanation as to the
cause is coming forth from the defendant. To emphasise the point,
it may be reiterated that in such cases, the event or accident must
be of a kind which does not happen in the ordinary course of
things if those who have the management and control use due
care. But, according to some decisions, satisfaction of this condition
alone is not sufficient for res ipsa to come into play and it has to
be further satisfied that the event which caused the accident was
within the defendant’s control. The reason for this second
requirement is that where the defendant has control of the thing
which caused the injury, he is in a better position than the plaintiff
to explain how the accident occurred. Instances of such spec ial
kind of accidents which “tell their own story” of being offsprings
of negligence, are furnished by cases, such as where a motor
vehicle mounts or projects over a pavement and hurts somebody
there or travelling in the vehicle; one car ramming another from
behind, or even a head-on collision on the wrong side of the road.
(See per Lord Normand in Barkway v. South Wales Transport
Co. [(1950) 1 All ER 392, 399] ; Cream v. Smith [(1961) 8 AER
349] ;Richley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER 109])
7 (1980) 1 SCC 30
1137
20. Thus, for the application of the maxim res ipsa loquitur “no
less important a requirement is that the res must not only bespeak
negligence, but pin it on the defendant”.
xxx xxx xxx
26. From the above conspectus, two lines of approach in regard
to the application and effect of the maxim res ipsa loquitur are discernible.
According to the first, where the maxim applies, it operates as an exception
to the general rule that the burden of proof of the alleged negligence is,
in the first instance, on the plaintiff. In this view, if the nature of an
accident is such that the mere happening of it is evidence of negligence,
such as, where a motor vehicle without apparent cause leaves the
highway, or overturns or in fair visibility runs into an obstacle; or brushes
the branches of an overhanging tree, resulting in injury, or where there is
a duty on the defendant to exercise care, and the circumstances in which
the injury complained of happened are such that with the exercise of the
requisite care no risk would in the ordinary course ensue, the b urden
shifts or is in the first instance on the defendant to disprove his liability.
Such shifting or casting of the burden on the defendant is on account of
a presumption of law and fact arising against the defendant from the
constituent circumstances of the accident itself, which bespeak negligence
of the defendant. This is the view taken in several decisions of English
courts. [For instance, see Burke v. Manchester, Sheffield & Lincolnshire
Rail Co. [(1870) 22 LJ 442] ; Moore v.R. Fox & Sons [(1956) 1 QB 596
: (1956) 1 All ER 182] . Also see paras 70, 79 and 80 of Halsbury’s
Laws of England, Third Edn., Vol. 28, and the rulings mentioned in the
footnotes thereunder.]
27. According to the other line of approach, res ipsa loquitur is
not a special rule of substantive law; that functionally, it is only an aid in
the evaluation of evidence, “an application of the general m ethod of
inferring one or more facts in issue from circumstan ces proved in
evidence”. In this view, the maxim res ipsa loquitur does not require
the raising of any presumption of law which must sh ift the onus
on the defendant. It only, when applied appropriate ly, allows the
drawing of a permissive inference of fact, as disti nguished from
a mandatory presumption properly so-called, having regard to the totality
of the circumstances and probabilities of the case. Res ipsa is only a
means of estimating logical probability from the circumst ances of the
accident. Looked at from this angle, the phrase (as Lord Justice Kennedy
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
put it [Russel v. London & South Western Railway Co, (1908) 24 TLR
548] ) only means, “that there is, in the circumstances of the particular
case, some evidence which, viewed not as a matter of conjecture, but of
reasonable argument, makes it more probable that ther e was some
negligence, upon the facts as shown and undisputed, th an that the
occurrence took place without negligence .... It me ans that the
circumstances are, so to speak, eloquent of the negligence of somebody
who brought about the state of things which is complained of.”
28. Recently, a three Judge Bench in a judgment reported as Iffco
Tokio General Insurance Company Limited v. Pearl Beverages
Limited8 approved the aforesaid judgment in a case of medical negligence
being examined by the consumer fora. It was held as under:
“86. Thus, it is used in cases of tort and where the facts without
anything more clearly and unerringly point to negligence. The
principle of res ipsa loquitur, as such, appears to be inappos ite,
when, what is in question, is whether driver was under the influence
of alcohol. It may be another matter that though the principle as
such is inapplicable, the manner in which the accident occurred
may along with other circumstances point to the driver being under
the influence of alcohol.”
29. In Martin F. D’Souza v. Mohd. Ishfaq9, this court observed
thatthe doctor cannot be held liable for medical negligence by applying
the doctrine of res ipsa loquitur for the reason that a patient has not
favourably responded to a treatment given by a doctor or a surgery has
failed. There is a tendency to blame the doctor when a pa tient dies or
suffers some mishap. This is an intolerant conduct of the family members
to not accept the death in such cases. The increased cases of manhandling
of medical professionals who worked day and night without their comfort
has been very well seen in this pandemic. This Court held as under:-
“40. Simply because a patient has not favourably responded to a
treatment given by a doctor or a surgery has failed, the doctor
cannot be held straightaway 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
8 (2021) 7 SCC 704
9 (2009) 3 SCC 1
1139
the professional would be at stake. A single failure may cost him
dear in his lapse.
xxx xxx xxx
42. When a patient dies or suffers some mishap, there is a tendency
to blame the doctor for this. Things have gone wron g 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 penalised
for losing a case provided he appeared in it and ma de his
submissions.”
30. In case of medical negligence, this Court in a celebr ated
judgment reported as Jacob Mathew v. State of Punjab and Anr .10
held that simple lack of care, an error of judgment or an accident, is not
a proof of negligence on the part of a medical professional. The Court
held as under:
“48.We sum up our conclusions as under:
(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. The definition of negligence as given in Law of Torts,
Ratanlal & Dhirajlal (edited by Justice G.P. Singh), refe rred 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 ess ential
components of negligence are three: “duty”, “breach” and
“resulting damage”.
(2) Negligence in the context of the medical profession necessarily
calls for a treatment with a difference. To infer ra shness 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
10 (2005) 6 SCC 1
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
a practice acceptable to the medical profession of that day, he
cannot be held liable for negligence merely because a b etter
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 accuse d
followed. When it comes to the failure of taking precautions, what
has to be seen is whether those precautions were taken which
the ordinary experience of men has found to be sufficient; a failure
to use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care, while
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. Similarly, 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 particular time
(that is, the time of the incident) at which it is suggested it should
have been used.
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(4) The test for determining medical negligence as laid down
in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)]
, WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out in
para 19, p. 19 herein.]] holds good in its applicability in India.
xxx xxx xxx
(8) Res ipsa loquitur is only a rule of evidence and operates in
the domain of civil law, specially in cases of torts and h elps in
determining the onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa
loquitur has, if at all, a limited application in trial on a charge of
criminal negligence.”
31. In another judgment reported as Arun Kumar Manglik v.
Chirayu Health and Medicare Private Limited and Anr.11, this Court
held that the standard of care as enunciated in Bolam case must evolve
in consonance with its subsequent interpretation by English and Indian
Courts. The threshold to prove unreasonableness is set with due regard
11 (2019) 7 SCC 401
1141
to the risks associated with medical treatment and the conditions under
which medical professionals’ function. The Court held as under:
“45. In the practice of medicine, there could be varying approaches
to treatment. There can be a genuine difference of op inion.
However, while adopting a course of treatment, the med ical
professional must ensure that it is not unreasonable. The threshold
to prove unreasonableness is set with due regard to the r isks
associated with medical treatment and the conditions under which
medical professionals function. This is to avoid a situation where
doctors resort to “defensive medicine” to avoid cla ims of
negligence, often to the detriment of the patient. Hence, in a
specific case where unreasonableness in professional conduct has
been proven with regard to the circumstances of that ca se, a
professional cannot escape liability for medical evidence merely
by relying on a body of professional opinion.”
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam 12,
this Court held that the Commission ought not to presume that the
allegations in the complaint are inviolable truth even though they remained
unsupported by any evidence. This Court heldas under:
“37. We find from a reading of the order of the Commission that
it proceeded on the basis that whatever had been alleged in the
complaint by the respondent was in fact the inviolable truth even
though it remained unsupported by any evidence. As alread y
observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC
(Cri) 1369] the onus to prove medical negligence lies largely on
the claimant and that this onus can be discharged by leading cogent
evidence. A mere averment in a complaint which is denied by the
other side can, by no stretch of imagination, be said to be evidence
by which the case of the complainant can be said to be proved. It
is the obligation of the complainant to provide the facta
probanda as well as the facta probantia.”
33. In another judgment reported as Kusum Sharma and Others
v. Batra Hospital and Medical Research Centre and Oth ers13, a
complaint was filed attributing medical negligence to a doct or who
performed the surgery but while performing surgery, the tumo ur was
12 (2009) 7 SCC 130
13 (2010) 3 SCC 480
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
found to be malignant. The patient died later on after prolonged treatment
in different hospitals. This Court held as under:
“47. Medical science has conferred great benefits on mankin d,
but these benefits are attended by considerable ris ks. Every
surgical operation is attended by risks. We cannot take the benefits
without taking risks. Every advancement in technique is also
attended by risks.
xxx xxx xxx
72. The ratio of Bolam case [(1957) 1 WLR 582 : (1957) 2 All
ER 118] is that it is enough for the defendant to show that the
standard of care and the skill attained was that of the ord inary
competent medical practitioner exercising an ordinary degree of
professional skill. The fact that the respondent charge d 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 so me
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.
xxx xxx xxx
78. 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 Penal Code, 1860 has
taken care to ensure that people who act in good faith should not
be punished. Sections 88, 92 and 370 of the Penal Code give
adequate protection to the professionals and particularly medical
professionals.”
34. Recently, this Court in a judgment reported as Dr. Harish
Kumar Khurana v. Joginder Singh & Others 14 held that hospital and
14 (2021) SCC On line SC 673
1143
the doctors are required to exercise sufficient care in treating the patient
in all circumstances. However, in an unfortunate case, death may occur.
It is necessary that sufficient material or medical evide nce should be
available before the adjudicating authority to arrive at the conclusion
that death is due to medical negligence. Every death of a patient cannot
on the face of it be considered to be medical negligence. The Court held
as under:
“11. …….. Ordinarily an accident means an unintended and
unforeseen injurious occurrence, something that does not occur
in the usual course of events or that could not be reasonably
anticipated. The learned counsel has also referred to the decision
in Martin F.D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein it
is stated that simply because the patient has not fa vourably
responded to a treatment given by doctor or a surgery has failed,
the doctor cannot be held straight away liable for medical
negligence by applying the doctrine of Res Ipsa Loquitor. It i s
further observed therein that sometimes despite best eff orts the
treatment of a doctor fails and the same does not mean that the
doctor or the surgeon must be held guilty of medical negligence
unless there is some strong evidence to suggest that the doctor is
negligent.
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14. Having noted the decisions relied upon by the learned counsel
for the parties, it is clear that in every case where the treatment is
not successful or the patient dies during surgery, it cannot be
automatically assumed that the medical professional was negligent.
To indicate negligence there should be material available on record
or else appropriate medical evidence should be tendered. T he
negligence alleged should be so glaring, in which event the principle
of res ipsa loquitur could be made applicable and not based on
perception. In the instant case, apart from the allegati ons made
by the claimants before the NCDRC both in the complaint and in
the affidavit filed in the proceedings, there is no other me dical
evidence tendered by the complainant to indicate negligence on
the part of the doctors who, on their own behalf had explaine d
their position relating to the medical process in their affidavit to
explain there was no negligence. ………………”
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]
35. It may be mentioned here that the complainant had led no
evidence of experts to prove the alleged medical negligence except their
own affidavits.The experts could have proved if any of the doct ors in
the Hospital providing treatment to the patient were deficient or negligent
in service. A perusal of the medical record produced does not show any
omission in the manner of treatment. The experts of different specialities
and super-specialities of medicine were available to treat and guidethe
course of treatment of the patient. The doctors are expecte d to take
reasonable care but none of the professionals can assure that the patient
would overcome the surgical procedures. Dr. Kripalani has been attributed
to have informed the complainant that the patient’s legs were not working
but Dr. Kripalani denied all the averments by filing of an affidavit.
36. As discussed above, the sole basis of finding the appellant s
negligent was res ipsa loquitor which would not be applicable herein
keeping in view the treatment record produced by the Hos pital and/or
the Doctor. There was never a stage when the patien t was left
unattended. The patient was in a critical condition and if he could not
survive even after surgery, the blame cannot be passed on to the Hospital
and the Doctor who provided all possible treatment within their means
and capacity. The DSA test was conducted by the Hospital it self on
22.4.1998. However, since it became dysfunctional on 24.4.1998 and
considering the critical condition of the patient, an alternative angiography
test was advised and conducted and the re-exploration was thus planned.
It is only a matter of chance that all the four operation th eatres of the
Hospital were occupied when the patient was to undergo surger y. We
do not find that the expectation of the patient to have an emer gency
operation theatre is reasonable as the hospital can provide only as many
operation theatres as the patient load warrants. If the operation theatres
were occupied at the time when the operation of the patient was
contemplated, it cannot be said that there is a negligence on the part of
the Hospital. A team of specialist doctors was available and also have
attended to the patient but unfortunately nature had the last word and
the patient breathed his last. The family may not have co ped with the
loss of their loved one, but the Hospital and the Doctor cannot be blamed
as they provided the requisite care at all given times. No doctor can
assure life to his patient but can only attempt to treat his patie nt to the
best of his ability which was being done in the present case as well.
37. Therefore, we find that the findings recorded b y the
Commission holding the Hospital and the Doctor guilty of medical
1145
negligence are not sustainable in law. Consequently, the present appeals
are allowed. The order passed by the Commission is set aside and the
complaint is dismissed.
38. By virtue of an interim order passed by this Court on 8.3.2010,
a sum of Rs. 5 lakhs was disbursed to the complainant. The said amount
is ordered to be treated as ex gratia payment to the complainant and not
to be recovered back by either the Hospital or the Doctor.
Divya Pandey Appeals allowed.
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]