Kusum Sharma V Batra Hospital

IN THE 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
INTRODUCTION:
In the Concerned Case, a complaint filed before the National Consumer Disputes Redressal
Commission (NCDRC) under Section 21 of the Consumer Protection Act claiming compensation of
Rs. 45 lakhs attributing deficiency in service and medical negligence in the treatment of the
deceased, late Shri R.K. Sharma, Sr. Operations Manager, India Oil Corporation (IOC), (Mrktg.
Dvn.), New Delhi who is the husband of the first Complainant and father of other Complainants
which was dismissed by the NCDRC. Therefore, the Present Appeal before the Supreme Court:
FACTS:
1. 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).
2. 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.
3. 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.
4. 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.
5. 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.
6. 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 Kumar.
7. 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.
8. 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 ‘pyogenic meningitis’.
ISSUES INVOLVED IN THE CASE:
1. WHETHER THE TUMOUR REMOVED BY THE RESPONDENT NO.3 IN THE FIRST

SURGERY AT THE BATRA HOSPITAL WAS MALIGNANT OR NOT?
2. WHETHER THE ‘ANTERIOR APPROACH’ ADOPTED AT THE TIME OF FIRST
SURGERY TO REMOVE THE TUMOUR WAS CORRECT OR NOT?
3. RELIEF PROVIDED TO THE APPELANTS.
CONTENTION OF THE APPELLANTS:
1. The appellants alleged that the respondents were completely negligent in performing their
duties which is a pious obligation upon the doctors towards their patients so that they can
help their patients to come out of their suffering and pain.
2. The appellants also alleged that there was nothing on record to conclusively establish
malignancy of the tumor before the operation was undertaken.
3. The appellants also had the grievance that they were not told about the possible
complications of the operation.
CONTENTION OF THE RESPONDENTS:

1. The respondents 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.
2. The respondents also submitted that the tumour was sent for biopsy the same day i.e.
2.4.1990 and it recorded a positive finding of the tumour being malignant.
3. The Respondents also contended that The risk involved was explained to the patient and the
appellants and they had agreed to the surgery after due consultation with the family doctor.
JUDGEMENT:
The Hon’ble Supreme court has held that 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 interest and welfare of the patients have to be paramount for the medical professionals.
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. 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.
RATIONALE:
ISSUE I: 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. So, it is very much clear from the reports that the tumor
has a tendency of being malignant and dangerous in nature.
ISSUE II : The Hon’ble Supreme court while keeping in mind the decision of a british court cited
that in which Lord Justice Mcnair Observed-
i. 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 contrary view.i
i
Bolam v. Friern Hospital Management Committee (1957) I WLR 582 :(1957) 2 All ER 118 (QB Division)
Justice McNair explained ‘Negligence’ in very simple terms. He Stated that Negligence- is ‘the doing of an
act’ which a prudent reasonable man under similar circumstances would not do or ‘the omission of doing
an act’ which a reasonable man would do. 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 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.”
IN THE PRESENT CASE BEFORE US BOTH THE APPROACHES ARE WIDELY RECOGNISED IN
OPERATING SUCH A DISEASE BY THE MEDICAL SOCIETY AT LARGE AND ADOPTING ONE
APPROACH OVER THE OTHER IN TREATING THE PATIENT DOES NOT AMOUNT TO
MEDICAL NEGLIGENCE WHEN THE SURGERY IS NOT SUCCESSFUL.
ISSUE III : In the present case, appellants failed to prove on record or with the help of evidences
anything which goes on to prove any sort of negligence against any of the defendants i.e. why their appeal
is also dismissed by the Hon’ble Supreme Court as well.
CONCLUSION :
A liability would only come, if (a) either the person (doctor) did not possess the requisite skills which he
professed to have possessed; or (b) he did not exercise, with reasonable competence in a given case, the
skill which he did possess.
While applying the above stated principles governing the law of medical negligence to the facts of the
present case, my opinion is that the respondent Hospital promptly attended the appellant’s Husband and
carried out medical procedures based on professional and medical assessment by respondent Doctor
depending upon the medical condition of the patient, and could not constitute medical negligence.
In view of the aforesaid, the Supreme Court noted that though we have sympathy for the appellant, but
sympathy cannot translate into a legal remedy.

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Kusum Sharma & Others ...

Batra Hospital & Medical Research Centre

ISSUES INVOLVED IN THE CASE:

1. WHETHER THE TUMOUR REMOVED BY THE RESPONDENT NO.3 IN THE FIRST

CONTENTION OF THE APPELLANTS:

CONTENTION OF THE RESPONDENTS:

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