Dr. (MRS.) Chanda Rani Akhouri & Ors. v. Dr. M.A. Methusethupathi & Ors.
AJAY RASTOGI, J.
1. The sad demise of husband of appellant no.1 after his long
illness on 3 rd February, 1996 has resulted in initiation of the leg al
proceedings at the instance of appellant no.1 along with her children on
a bona fide belief that the cause of death of her late husband w as post
operative medical negligence and follow-up care.
2. The National Consumer Disputes Redressal Commiss ion
(hereinafter “the Commission”), after appreciating the material on record,
including the evidence led by the parties, arrived to a conclusion that it
was not a case of post operative medical negligence as being alleged by
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS.
the appellants and dismissed the complaint by the judgment impugned
dated 21 st July, 2009 which is the subject matter of appeal filed at t he
instance of the appellants under Section 23 of the Consumer Protection
Act, 1986.
3. In order to appreciate the issue involved in the instant appeal, it
may be necessary to cull out the facts relevant for the purpose.
Complainant no.1, the widow and complainant nos.2 and 3, the minor
children of deceased Naveen Kant, jointly filed a complaint, inter alia,
alleging that in the first instance in April, 1990, Naveen Kant developed
hypertension and was under the treatment of Dr.P.D. Gulati, Nephrologist,
but when no positive changes had come forward, Dr. Gulati advised him
for renal transplantation and since then, Naveen Kant was under regular
dialysis at the hospital in Delhi under the supervision of Dr. Gulati. When
some of his well-wishers informed him about a reputed Ne phrologist,
Dr. M.A. Muthusethupathi, OP No.1 who is performing kidney transplant
surgery at Madras and after going through the entire medical record and
seeking opinion of OP No.1 and after completion of all legal formalities
as being contemplated under the provisions of the Transplantati on of
Human Organs and Tissues Act, 1994 (hereinafter “the Act 1994”) and
taking into consideration the fact that dialysis twice a wee k may not
have been possible for longevity and for better life span of the patient
Naveen Kant, the family took a decision to undergo for kidney
transplantation and on the advice of OP No.1, the patient Naveen Kant
was admitted to OP No.6 (Aswini Soundra Nursing Home), which i s
registered under the Act 1994 and a kidney transplant sur gery was
successfully performed on 12 th November, 1995 by a team of 12 experts
headed by OP Nos.1, 2 and 5, who are admittedly well qualified and
experts with wide knowledge and experience in their respective fields
and after the medical condition of Naveen Kant was revie wed by OP
No.1, he was discharged from OP No.6 hospital on 24 th November, 1995.
It may be relevant to note that the doctors who had conducted k idney
transplant of the patient have conducted more than 900-1000 r enal
transplants with good results, but there are cases where pa tient died
even after successful kidney transplant for various reasons which cannot
be even under the control of the doctors.
4. It reveals from the record that despite all post operative medical
treatment and follow up care of the patient under the supervi sion of
medical experts, still the destiny could not save him and he finally died
on 3 rd February, 1996.
817
5. The complaint of the appellants was that while Naveen Kant
was discharged from OP No.6 hospital on 24 th November, 1995, he was
asked to attend as an outdoor patient for dressing of the wound at the
place of incision, but his complaint throughout was that while he was in
ICU, he had a pain in his left forearm where intravenous drugs were
injected and at the given time, he was assured that the pain would subside
in due course of time and as and when OP No.1 came for review, it was
the consistent complaint of Naveen Kant of pain in the l eft forearm
since he was operated and the day he was discharged on 24 th November,
1995 and within a short period of 7 days on 30 th November, 1995, OP
No.1 noticed the onset of cellulitis in Naveen Kant’s left forearm and
there was a recurrence of abscess at other points, but still the doctors
did not take it seriously and conducted investigations into the cause of
pain and later on 16 th December, 1995, Naveen Kant developed severe
headache coupled with loss of proper vision in the right eye and also
started vomiting. OP No.1 pointed out these problems to t he doctor
dialysis in-charge of OP No.6 hospital, who used to administer necessary
I.V. injections and do the dressing.
6. However, on 21 st December, 1995, on the advice of OP No.1,
Naveen Kant was again admitted to OP No.4 hospital and h e was
administered anti convulsion injection. Although attended by OP Nos.1,
3 and 5, headache, fever and pus in his left forearm still pe rsisted. OP
No.5 made a long incision in the left forearm to drain off the pus, but
because OP No.1 was unavailable on 30 th December, 1995, OP No.2
was called upon to take care of the patient.
7. Later, more complications crept in and because of complications,
there developed abscess in pancreas and liver and the X-ra y showed
some abnormal developments in the lung and that later converted into
Septicemia. Ultimately, the required potency of antibiotics administered
or the quality of these antibiotics also failed to respo nd. He was later
moved to ICU on instructions of OP No.3 and in the morning of 31 st
January, 1996, OP No.1 also visited Naveen Kant, who was at that time
in unconscious stage, even after that, his conditio n continuously
deteriorated and the fact is that no one attended to the complaint made
by Naveen Kant and finally he could not be saved and left for heavenly
abode on 3 rd February, 1996. This, according to the appellants was the
cause of post-operative negligence and follow up care on the part of the
doctors and the nursing staff of the hospital who had not provided proper
medical care to Naveen Kant and attributed negligence on the p art of
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
the treating doctors and the hospital and claimed special damages/ general
damages for a total sum of Rs.95,16,174.33/-.
8. The respondents contested the complaint by filin g reply
affidavits, wherein it was stated that respondent No.1 who was a treating
doctor(OP No.1) is a Senior Nephrologist who did M.D. (General
Medicines) at Stanley Medical College in 1968 and after doing his D.M.
in 1977 from PGI Chandigarh, he exclusively worked and performed
kidney transplantation in Government hospitals and also disclosed his
professional skill which he has developed, particularly in the field of
kidney transplantation and so also, the other doctors, OP No.2 Dr. S.
Shivakumar and OP No.5 Dr. P.S. Venkateswaran were also the expert
doctors in performing kidney transplantation and have a rich professional
experience and as regards OP No.6 hospital, where kidney transplantation
was performed, it was duly registered hospital under the Act,1994 and is
a fully equipped hospital for transplantation and patient Na veen Kant
after successful surgery of the kidney transplantation and after 12 days
in ICU with all medical protocols followed and taking into consideration
his overall health, discharged on 24 th November, 1995.
9. It is further stated that the hospital records for the period 10 th
November to 24 th November, 1995, the sequence of events relating to
the immediate post Transplantation Surgery period revealed t hat the
surgery was successfully performed on 12 th November, 1995 and later
on 13 th November, 1995, the patient developed low grade fever for a
few hours in the morning and there was no other evidence of any bacterial
infection and Injection Reflin was administered to him and after all tests
were undertaken on 14 th November, 1995, and taking into consideration
the positive response of the patient, he was discharged on 24 th November,
1995 and till the date of discharge, the patient was subjected to periodical
and routine visits by the Specialist Surgeons, Nephrologis ts and was
under a constant medical observation. The medical observat ion of the
patient as seen from the case sheet is extracted hereunder:
“Afebre – No Fever.
Lungs clear
CVS S1 S2 – Normal Sound (Cardio Vascular System)
Abdomen – Soft-Mild distention.
NAD – Nothing abnormal detected.
No Oedema – No swelling throughout the body.”
819
10. On 17 th November 1995, the Urinary catherer tip grew
klebsiella on culture for which Ciprofloracin was s tarted. On 24 th
November, 1995, the patient was discharged after remaining under post
operative care for 12 days. Although complaints are made by the patient
of its own kind, but he was always attended and taken care of and when
the patient was called upon to continue to attend as an outdoor patient,
all medical assistance possible at the command of the respondents was
extended to him. It is unfortunate that the patient could no t be saved
despite the best medical assistance being extended to him by the experts
of the field.
11. On behalf of the complainant, evidence was led by Mrs. Vimla
Akhori, relative of appellant no.1, Dr.(Mrs.) Minii Rani Datta, sister of
appellant no.1, Col. Dr. Ashok Chopra, MBBS General Surgery a nd
Dr.(Mrs.) Sophia Ahmed, as medical experts who are undisputedly not
the Nephrologists. So far as the first two witnesses (relatives of appellant
no.1) are concerned, they have just narrated the statement of fact which
was narrated to them by the appellants being their relative and both the
witnesses Dr. Ashok Chopra and Dr. Sophia Ahmed was neither expert
of kidney transplantation nor a qualified Nephrologist.
12. So far as the so-called expert evidence adduced by the
appellants before the Commission is concerned, Dr. Ashok Chopra, who
was a Consultant Surgeon in the BSES Global Hospital at Andheri (West),
Mumbai, admittedly passed out his MBBS examination in the year 1974
and only performed general surgery during his tenure in the Army and
later left the Army and served as Surgeon in Bareilly and later became
a Surgeon in BSES Hospital, Andheri (West), Mumbai, although stated
in his affidavit obviously based on the case sheet of the patient that the
respondents have not taken post operative care of the patient and have
failed to control and treat infection that has manifested itself in the form
of persistent pain in the left forearm of the patient at the place where a
needle had been inserted for injection of drugs in the OCU of OP No.6.
Timely and adequate medical intervention was absent in post operative
medical treatment to the patient and also opinion was expressed by him
regarding the drugs administered to the patient and also stated about the
time the patient was discharged after 12 days of his surgery and
rehospitalization of the patient in OP No.4 hospital on 21 st December,
1995 which was not a registered hospital under the Act, 1994 and t he
patient should have been admitted in OP No.6 hospital w hich was
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
registered where the kidney transplantation was performed and on this
account, OP No.1 has failed to perform his duty towards the patient by
allowing him to be lodged in an unregistered hospital i.e. OP No.4. Although
it has been admitted by him that the operation was successful, but because
of the lackadaisical attitude and post operative care not being properly
administered to the patient, it created abscess and went into septicemia,
which could easily have been retrieved out of the dangerous inf ection
leading to multi organ failure and in this way has expressed his opinion
that there was a post operative negligence on the part of the respondents.
13. The second expert witness appeared on behalf of the appellants
was Dr. Sophia Ahmed. She took MBBS from Patna Medical Col lege
and later did internship in Internal Medicines at Queens Hospital, Central
New York and remained as a resident in Neurology at University Hospitals
and Clinics at USA for almost three years and has a Fellowship in Clinical
Neurophysiology and Epilepsy. With no expert knowledge of the subject
based on the medical reports made a statement of a medical negligence
being performed by the respondents and expressed her opini on that in
the post transplant phase, patient manifested clear symptoms of infection
while in the ICU and the patient was not recovered adequa tely for
nosocomial infection and his manifest problems and indicators were not
addressed by the attending doctors with seriousness and urgency and at
critical junctures, the retained nephrologist displayed complete lack of
professional concern for the patient and this according to her was a post
operative medical negligence being committed by the respondents and
only because of their lackadaisical attitude, they lost their patient.
14. On the other hand, the respondents who indeed w ere
themselves qualified Nephrologists and experts in the fie ld of kidney
transplant operations and this fact is not disputed by t he appellants as
well in support thereof have produced two expert witnesses, Dr. S. Sundar
and Dr. Arun Kumar, who are qualified Nephrologists.
15. Dr. S. Sundar, Director and Chief Nephrologist of Karnataka
Nephrology and Transplant Institute, Bangalore stated that o ut of his
long experience in having performed more than thous and kidney
transplantation surgeries in the past 22 years and based on the evidence
of literature relating to kidney transplantation, increase i n total count
(leucocytes) is a common phenomenon in most of the renal tr ansplant
recipients, who have been administrated Corticosteroids. Somet imes,
rise in total counts does not per se mean infection but there is no reason
821
to conclude that the patient ought not to have been discharged after 12 th
day of surgery. It is also stated that leucocyte count will not rise in the
post transplant period in absence of any infection that only proves lack
of experience and medical knowledge of renal transplant. The witness
has further stated that on 30 th November 1995, when the patient was
diagnosed cellulitis/abscess, injection Reflin was admin istered by OP
No.1 which was the best medicine for cellulitis and it is a common practice
to use this drug in such a situation. It was further stat ed by him that
medical science is not an exact science like mathematics and in medical
science experience of doctor treating the patient is imp ortant. It has
been further averred by him that most transplant patients having fever
are treated with drugs like Amikacin and Ciprofloxacin to cover a broader
spectrum of organisms in the absence of definitive evidence of organism
causing fever. It has been further stated by him that in the field of kidney
transplantation and Nephrology, it is very difficult to diagnose and manage
any infection in a Kidney Transplant patient and the reasons are many.
These are:
(a) Cultures of body fluids (blood, urine, pus, etc.) are often
negative.
(b) Even if an organism is isolated, it is not always possible to be
certain that the particular organism is the actual cause of fever.
(c) Many of the antibiotics have deleterious effect s on the
transplanted kidney, thereby necessitating great care in drug
selection and dosage.
(d) Un-related donor transplantation need more immu ne-
suppression for the kidney to survive and therefore is more prone
to infection.
16. Dr. Arun Kumar, who was also produced on behalf of the
respondents, was also a Professor of Surgery, Head of the Department
of Surgery, Coimbatore Medical College, Tamil Nadu also stated in his
affidavit that he has been a kidney transplant surgeon since 1986 and
has performed over 1140 renal transplantations. In clinical practice, positive
findings, if any, are always noted in the case records and af ter going
through the record history of the patient, it was stated by him that he did
not find any evidence of infection at the time of discharge of the patient
from OP No.6.
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
17. The Commission, after taking into consideration the pleadings
so also the evidence on record arrived to a conclusion that t he patient
Naveen Kant was under the hands of the expert team of doc tors and
possible medical care at the command of the doctors was fully
administered to him and after being discharged from the hospital on 24 th
November, 1995, still thereafter he was continued to be under treatment
and merely because the expert team of doctors could not save him after
his prolonged illness and he died on 3 rd February, 1996 that in itself could
not be considered to be a case of post operative medical negligence and
in consequence thereto dismissed the complaint filed at the instance of
the appellants under judgment impugned dated 21 st July, 2009.
18. It is not disputed by counsel for the appellants that the kidney
transplantation of the patient on 12 th November, 1995 was successful
and they had complained but the complaint is only in reference to post
operational medical negligence as the respondents have failed to discharge
their statutory duty of care and medical protocols subsumed thereunder,
including follow up care and that according to the appellants is a medical
negligence on the part of the respondents in extending treatment to the
patient Naveen Kant and being the case of post operative negligence,
they have lost their patient on 3 rd February, 1996.
19. Counsel for the appellants further submitted that the patient
was consistently complaining after he being successfully o perated on
12 th November, 1995 and shifted to the ICU for pain in the left forearm
where intravenous drugs were injected to him and when the patient was
attended by OP No.1 for review, he reiterated his complaint of pain in
the left forearm and still he was discharged from the hospi tal on 24 th
November, 1995. Later, the patient noticed the onset of cellulit is and
recurrence of abscess being at other points, still the doctor s have not
taken his complaint seriously and conducted investigations into the cause
of pain and later he developed severe headache, coupled with loss of
proper vision in the right eye and started vomiting. These fact s can be
supported by the prescription chart of the patient and that was the reason
for which the patient was again admitted in the hospital of OP No.4 on
21 st December, 1995 and fever and pus in his left forearm still persisted.
At that stage, OP No.5 made a long incision in the left forearm to drain
out the pus, but since OP No.1 was not available, his condition deteriorated
and finally left for heavenly abode on 3 rd February, 1996 and this fact
has been established from the evidence placed on re cord of the
823
complainant and other witnesses including the two doctors, who as an
expert appeared and recorded a deposition in support of kind of post
operative medical negligence committed by the respon dents. The
Commission, according to the counsel, although noticed these facts but
has not at all appreciated the evidence on record a nd thus, after
reproduction of the facts adduced by the parties, dismissed the complaint
in a cavalier manner under the impugned judgment dated 21 st July, 2009,
which needs to be revisited by this Court at least to examine as to whether
it was a case of post operative medical negligence, the reason for which
appellant no.1 has lost her husband.
20. Per contra, counsel for the respondents, while supporting the
findings recorded by the Commission under the impugned judgment,
submits that it is not the case of the appellants that there was any slackness
on the part of the team of the doctors while the patient was being operated/
underwent kidney transplant on 12 th November, 1995 which was
admittedly successfully performed by the qualified team of doctors headed
by OP No.1 and OP No.5 and thereafter the patient was shifted to ICU
for post operative treatment and even thereafter he was completely
under medical supervision and got discharged on 24 th November, 1995
with further instructions that he should remain as an outdoor patient until
the doctors advise him to leave the city and the reason was that as an
outdoor patient, dressing of wounds at the place of incision is always to
be taken proper care. So far as the complaint of pain in the left forearm
is concerned, these are some complaints which the patients nor mally
make but it is always taken care of and the time heals complaints of the
patient, but still all medical assistance which was possi ble under the
command of the qualified doctors was extended to him. It is true that
unfortunately, appellant no.1 has lost her husband but this all is destiny.
21. The doctors can provide their best medical assistance available
at their command but merely because they could not save the pat ient,
that could not be considered to be a case of post operati ve medical
negligence despite the fact that medical protocol administered by them
was duly supported by the two medical experts of the field who appeared
on behalf of the respondents, Dr. S. Sundar and Dr. Arun Kumar, and
nothing elicits from the cross-examination made by the appe llants. In
the given circumstances, the findings which has been returned by the
Commission needs no further interference by this Court.
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
22. We have heard learned counsel for both the parties and with
their assistance perused the material placed on recor d. In order to
appreciate the opinion of the Commission, it will be ap posite to take
note of the legal principles which would apply in the case of medical
negligence.
23. In the case of medical negligence, this Court in Jacob Mathew
v. State of Punjab and Another 1 dealt with the law of medical negligence
in respect of professionals professing some special ski lls. Thus, any
individual approaching such a skilled person would have a reasonable
expectation under the duty of care and caution but there could be no
assurance of the result. No doctor would assure a full recovery in every
case. At the relevant time, only assurance given by implication is that he
possessed the requisite skills in the branch of the profession and while
undertaking the performance of his task, he would exercise his skills to
the best of his ability and with reasonable competence. Thus, the liability
would only come if (a) either a person (doctor) did not possess t he
requisite skills which he professed to have possessed; or (b) he did not
exercise with reasonable competence in given case the skil l which he
did possess. It was held to be necessary for every professional to possess
the highest level of expertise in that branch in which he practices. It was
held that simple lack of care, an error of judgment or an accident, is not
proof of negligence on the part of the medical professional. This 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”.
1 (2005) 6 SCC 1
825
(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
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.
xxx xxx xxx
(4) The test for determining medical negligence as laid down
in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586]
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.”
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
24. The term “negligence” has been defined in Halsbury Laws of
England (Fourth Edition) para 34 and as settled in Kusum Sharma and
Others v. Batra Hospital and Medical Research Centre and O thers 2
as under:
“45. According to Halsbury’s Laws of England , 4th Edn., Vol.
26 pp. 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 advice or treatment
impliedly undertakes that he is possessed of skill and knowledge
for the purpose. Such a person, whether he is a registered
medical practitioner or not, who is consulted by a patient, owes
him certain duties, namely, a duty of care in deciding whether
to undertake the case; a duty of care in deciding what treatment
to give; and a duty of care in his administration o f that
treatment. A breach of any of these duties will support an action
for negligence by the patient.”
25. In para 89 of the judgment in Kusum Sharma (supra), the
tests of medical negligence while deciding whether the medical
professional is guilty of medical negligence, varied tested principles have
to be kept in view, this Court held as under:
“89. On scrutiny of the leading cases of medical negligence both
in our country and other countries specially the 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 t hose
considerations which ordinarily regulate the conduct of human
affairs, would do, or doing something which a pruden t and
reasonable man would not do.
II. Negligence is an essential ingredient of the offence. The
negligence to be established by the prosecution must be culpable
or gross and not the negligence merely based upon an error of
judgment.
2 (2010) 3 SCC 480
827
III . The medical professional is expected to bring a
reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. Neither the very highest nor a very
low degree of care and competence judged in the light of the
particular circumstances of each case is what the law re quires.
IV . A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably competent
practitioner in his field.
V. In the realm of diagnosis and treatment there is scope
for genuine difference of opinion and one professional doctor is
clearly not negligent merely because his conclusion differs from
that of other professional doctor.
VI . The medical professional is often called upon to adopt a
procedure which involves higher element of risk, but which he
honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure. Just because a professional looking to the
gravity of illness has taken higher element of risk to redeem the
patient out of his/her suffering which did not yield the desire d
result may not amount to negligence.
VII . Negligence cannot be attributed to a doctor so long as
he performs his duties with reasonable skill and competenc e.
Merely because the doctor chooses one course of act ion in
preference to the other one available, he would not be liable if the
course of action chosen by him was acceptable to the medical
profession.
VIII . It would not be conducive to the efficiency of the
medical profession if no doctor could 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 unnecessaril y
harassed or humiliated so that they can perform their professional
duties without fear and apprehension.
X. The medical practitioners at times also have to be saved
from such a class of complainants who use criminal process as a
tool for pressurising the medical professionals/hospitals, particularly
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
private hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the
medical practitioners.
XI . The medical professionals are entitled to get protection
so long as they perform their duties with reasonable skill and
competence and in the interest of the patients. The intere st and
welfare of the patients have to be paramount for the me dical
professionals.”
26. In a recent judgment in Dr. Harish Kumar Khurana v.
Joginder Singh and Others 3, this Court held that the hospital and doctors
are required to exercise sufficient care in treating the p atients in all
circumstances. However, in an unfortunate case death may occur. It
will be necessary that sufficient material on medical evidence should be
available before the adjudicating authority to arrive at a conclusion that
the death is due to medical negligence. Even death of a patient cannot,
on the face of it, be considered to be medical negligence.
27. It clearly emerges from the exposition of law that a medical
practitioner is not to be held liable simply because thi ngs went wrong
from mischance or misadventure or through an error of judgme nt in
choosing one reasonable course of treatment in preference t o another.
In the practice of medicine, there could be varying appr oaches of
treatment. There could be a genuine difference of opinion. How ever,
while adopting a course of treatment, the duty cast upon the m edical
practitioner is that he must ensure that the medical protocol being followed
by him is to the best of his skill and with competence at his command. At
the given time, medical practitioner would be liable only where his conduct
fell below that of the standards of a reasonably competent practitioner
in his field.
28. The term “negligence” has no defined boundaries and if any
medical negligence is there, whether it is pre or post-operative medical
care or in the follow-up care, at any point of time by the treating doctors
or anyone else, it is always open to be considered by the Courts/
Commission taking note of the exposition of law laid down by this Court
of which a detailed reference has been made and each case has to be
examined on its own merits in accordance with law.
3 (2021) 10 SCC 291
829
29. Adverting to the facts of the instant case, the treating doctors,
OP Nos.1, 2 and 5 all are academically sound and experts in the field of
kidney transplantation. Respondent nos.1, 2 and 5 had disclosed their
qualifications of which a detailed discussion is not required and their
medical expertise in the field of nephrology and surgery in kidney
transplantation has not been doubted by the appellants. It is also not the
case of the appellants that the patient was not medically treated by the
well-qualified doctors at the time when kidney transplant su rgery was
undertaken on 12 th November, 1995 by the team of doctors including OP
Nos.1, 2 and 5 in the OP No.6 hospital which is a registered hospital
under the Act 1994.
30. Complaints have been made with regard to the post-operative
assistance / follow up care, but from the deposition of two w itnesses
which has come on record, there was a complaint made by the patient
of pain in his left forearm while he was being dischar ged on 24 th
November, 1995 after remaining in ICU for 12 days, but he was called
upon to continue as outdoor patient and on all the later occasions, even
as per the case sheet of the patient, doctors have treated t he patient to
the best of their medical knowledge and administered the best medical
care which was possible. Although the complaint of the patient which
remained persistent could not be ruled out despite medically approved
drugs being administered to him and if the patient could not be finally
saved, that in itself could not be considered to be a case of post operative
medical negligence, as is being tried to be projected by the appellants on
the basis of the material placed on record.
31. The doctors are expected to take reasonable care, but no
professional can assure that the patient will come bac k home after
overcoming the crisis. At the same time, no evidence has come on record
at the behest of the appellants which, in any manner, could demonstrate
that it was a case of post-operative medical negligence or follow up
care on the part of treating doctors and both the doctors who have
recorded their statements on behalf of the appellants, Dr. Ashok Chopra
and Dr. Sophia Ahmed, are not expert doctors in the fiel d of kidney
transplantation. Merely because they are doctors by profession, what is
being expressed by both of them in the affidavits filed before the
Commission would not be considered to be an opinion of experts.
32. On the contrary, the two experts who have deposed on behalf
of the respondents, Dr. S. Sundar and Dr. Arun Kumar are admitted ly
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]
experts of the field. At the same time, the respondents – OP Nos.1, 2
and 5 are indeed expert doctors and qualified Nephrologists and this fact
has been admitted by the appellants that the patient was under treatment
of the best medical professionals and qualified Nephrologists, but those
treating doctors could not save the patient Naveen Kant, that in itself
could not be considered to be a case of post operative medical negligence
which was the main grievance of the appellants before the Commission.
33. After going through the findings which have been returned by
the Commission in the order impugned, we see no reason to differ with
the view expressed by the Commission keeping in mind the tests
enunciated above. Taking note of the fact that treating doctors, OP Nos.1,
2 and 5 are medical experts in the field of nephrology and so far as OP
No.6 hospital where the patient was admitted for transplanta tion was
duly registered under the Act, 1994 and all post operative medical care
protocol available at the command of the respondents was administered
to the patient, still his physical condition deteriorated and finally he could
not be saved, which is really unfortunate, but there cannot be a legal
recourse to what is being acceptable to the destiny.
34. In our opinion, the Commission has not committed any manifest
error in arriving to a conclusion that in post operative medical negligence
or follow up care, there was no negligence being committed by the
respondents which may be a foundation for entertaining the complaint
filed by the appellants. In consequence thereof, the judgment o f the
Commission does not call for any interference by this Court.
35. Counsel for the appellants submitted that the nursing home/
hospital where the patient was admitted for post-opera tive care, was
not registered under the provisions of the Act 1994. With the assistance
of the counsel for the parties, we have gone through the Scheme of the
Act 1994 and the Rules made thereunder. The hospitals where the
procedure of transplantation is undertaken are to be registered in terms
of Section 14 of the Act 1994, but for post-operative care, particularly
after the patient being discharged from the hospital where the procedure
of transplantation has taken place, we have not come across any provision
under the Act, 1994 where such hospitals are required to be registered
under the Act 1994.
36. Before parting, we would like to observe that when the matter
was finally heard and concluded, appellant no.1 was present in Court
831
and we made a request as to whether she is still interest ed to get the
final judicial verdict on the issue which has been raised at her instance at
one stage by instituting a complaint before the Commission. The appellant
made a very candid statement before the Court that she w ants now to
sum up the matter and what she has lost is, in no manner, r ecoverable
and compensation even if awarded by this Court is not going to be of
any solace to her at this point of time. We realize the pain of losing her
husband and the trauma she has suffered, but that cannot translate into
a legal remedy.
37. Accordingly, we do not find any fault in the reasoning of the
Commission, as a result, the appeal is without substance and deserves to
be dismissed.
38. The appeal is accordingly dismissed. No costs.
39. All pending application(s) shall stand disposed of.
Bibhuti Bhushan Bose Appeal dismissed.
(Assisted by : Rakhi, LCRA)
DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.
METHUSETHUPATHI & ORS. [AJAY RASTOGI, J.]