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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3541 OF 2002
Martin F. D’Souza .. Appellant
-versus-
Mohd. Ishfaq .. Respondent
JUDGMENT
MARKANDEY KATJU, J.
1. This appeal against the judgment of the National Consumer Disputes
Redressal Commission, New Delhi dated 22.3.2002 has been filed under Section 23
of the Consumer Protection Act, 1986.
2. Heard learned counsel for the parties and perused the record.
3. The brief facts of the case are narrated below :
4. In March 1991, the respondent who was suffering from chronic renal
failure was referred by the Director, Health Services to the Nanavati Hospital,
Mumbai for the purpose of a kidney transplant.
5. On or about 24.4.1991, the respondent reached Nanavati Hospital,
Bombay and was under the treatment of the appellant Doctor. At that stage, the
respondent was undergoing haemodialysis twice a week on account of chronic renal
failure. Investigations were underway to find a suitable donor. The respondent
wanted to be operated by Dr. Sonawala alone who was out of India from 1.6.1991
to 1.7.1991.
6. On 20.5.1991, the respondent approached the appellant Doctor. At the
time, the respondent, who was suffering from high fever, did not want to be
admitted to the Hospital despite the advice of the appellant. Hence, a broad
spectrum antibiotic was prescribed to him.
7. From 20.5.1991 to 29.5.1991, the respondent attended the
Haemodialysis Unit at Nanavati Hospital on three occasions. At that time, his fever
remained between 101°-104°F. The appellant constantly requested the complainant
to get admitted to hospital but the respondent refused.
8. On 29.5.1991 the respondent who had high fever of 104°F finally agreed
to get admitted to hospital due to his serious condition.
9. On 30.5.1991 the respondent was investigated for renal package. The
medical report showed high creatinine 13 mg., blood urea 180 mg. The
Haemoglobin of the respondent was 4.3%. The following chart indicates the
results of the study in comparison to the normal range :-
Normal Range
S. Creatinine 13.0 mgs. % 0.7 – 1.5 mgs. %
Blood Urea 180 mgs. % 10-50 mgs. %
Haemoglobin 4.3 gms. % 11.5-13.5 gms. %
10. On 30.5.1991, the respondent was investigated for typhoid fever, which
was negative. He was also investigated for ESR, which was expectedly high in view
of renal failure and anemia infection. Urine analysis was also carried out which
showed the presence of bacteria.
11. On 3.6.1991, the reports of the urine culture and sensitivity were
received. The report showed severe urinary tract infection due to Klebsiella species
(1 lac/ml.). The report also showed that the infection could be treated by Amikacin
and Methenamine Mandelate and that the infection was resistant to other
antibiotics. Methnamine Mandelate cannot be used in patients suffering from renal
failure.
12. On 4.6.1991, the blood culture report of the respondent was received,
which showed a serious infection of the blood stream (staphylococcus species).
13. On 5.6.1991, Amikacin injection was administered to the respondent for
three days (from 5th to 7th June, 1991), since the urinary infection of the respondent
was sensitive to Amikacin. Cap. Augmentin (375 mg.) was administered three times
a day for the blood infection and the respondent was transfused one unit of blood
during dialysis. Consequent upon the treatment, the temperature of the respondent
rapidly subsided.
14. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney
transplant even though the respondent had advised him that in view of his blood
and urine infection no transplant could take place for six weeks.
15. On 8.6.1991, the respondent, despite the appellant’s advice, got himself
discharged from Nanavati Hospital. Since the respondent was suffering from blood
and urinary infection and had refused to come for haemodialysis on alternate days,
the appellant suggested Injection Amikacin (500 mg.) twice a day. Certain other
drugs were also specified to be taken under the supervision of the appellant when
he visited the Dialysis Unit.
16. On 11.6.1991, the respondent attended the Haemodialysis Unit and
complained to the appellant that he had slight tinnitus (ringing in the ear). The
appellant has alleged that he immediately told the respondent to stop taking the
Amikacin and Augmentin and scored out the treatment on the discharge card.
However, despite express instructions from the appellant, the respondent continued
to take Amikacin till 17.6.1991. Thereafter, the appellant was not under the
treatment of the appellant.
17. On 14.6.1991, 18.6.1991 and 20.6.1991 the respondent received
haemodialysis at Nanavati Hospital and allegedly did not complain of deafness
during this period.
18. On 25.6.1991, the respondent, on his own accord, was admitted to
Prince Aly Khan Hospital, where he was also treated with antibiotics. The
complainant allegedly did not complain of deafness during this period and
conversed with doctors normally, as is evident from their evidence.
19. On 30.7.1991, the respondent was operated upon for transplant after he
had ceased to be under the treatment of the appellant. On 13.8.1991, the
respondent was discharged from Prince Aly Khan Hospital after his transplant.
The respondent returned to Delhi on 14.8.1991, after discharge.
20. On 7.7.1992, the respondent filed a complaint before the National
Consumer Disputes Redressal Commission, New Delhi (being Original Petition
No.178 of 1992) claiming compensation of an amount of Rs.12,00,000/- as his
hearing had been affected. The appellant filed his reply stating, inter alia, that
there was no material brought on record by the respondent to show any co-
relationship between the drugs prescribed and the state of his health. Rejoinder
was filed by the respondent.
21. The National Consumer Disputes Redressal Commission (hereinafter
referred to as `the Commission’) passed an order on 6.10.1993 directing the
nomination of an expert from the All India Institute of Medical Sciences, New Delhi
(AIIMS) to examine the complaint and give an opinion. This was done in order to
get an unbiased and neutral opinion.
22. AIIMS nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the
All India Institute of Medical Sciences was submitted before the Commission, after
examining the respondent. Dr. Ghosh was of the opinion that the drug Amikacin
was administered by the appellant as a life saving measure and was rightly used. It
is submitted by the appellant that the said report further makes it clear that there
has been no negligence on the part of the appellant.
23. Evidence was thereupon led before the Commission. Two affidavits by
way of evidence were filed on behalf of the respondent, being that of his wife and
himself. The witnesses for the respondent were :-
i) The respondent Mohd. Ishfaq
ii) The wife of the respondent
iii) Dr. Ashok Sareen
iv) Dr. Vindu Amitabh
24. On behalf of the appellant, six affidavits by way of evidence were filed.
These were of the appellant himself, Dr. Danbar (a doctor attached to the
Haemodialysis Department of Nanavati Hospital), Dr. Abhijit Joshi (a Resident
Senior Houseman of Nanavati Hospital), Mrs. Mukta Kalekar (a Senior sister at
Nanavati Hospital), Dr. Sonawala (the Urologist who referred the respondent to the
appellant) and Dr. Ashique Ali Rawal (a Urologist attached to Prince Aly Khan
Hospital). The witnesses for the appellant were:-
i) The appellant-Dr. M.F. D’Souza
ii) Dr. Danbar
iii) Dr. Upadhyay
iv) Mrs. Mukta Kalekar
v) Dr. Ashique Ali Rawal
25. The respondent also filed an opinion of the Chief of Nephrology at
Fairview General Hospital, Cleveland, Ohlo, which was heavily relied upon in the
impugned judgment. The appellant has alleged that the said opinion was written
without examining the respondent and, in any case, the appellant was not afforded
an opportunity of cross-examining the person who gave the opinion.
26. The case of the respondent, in brief, is that the appellant was negligent
in prescribing Amikacin to the respondent of 500 mg twice a day for 14 days as
such dosage was excessive and caused hearing impairment. It is also the case of the
respondent that the infection he was suffering from was not of a nature as to
warrant administration of Amikacin to him.
27. The appellant submitted before the Commission that at the time of
admission of the respondent on 29.5.1991 to the hospital, he had fever of 104°F
and, after investigation, it was found that his serum creatinine level was 13 mg%,
blood urea 180 mg% and Haemoglobin 4.3 mg. Amikacin was prescribed to him
only after obtaining blood and urine culture reports on 3rd and 4th June, 1991,
which showed the respondent resistant to other antibiotics. Even the witness of the
respondent (Dr. Sareen) conceded that he would have prescribed Amikacin in the
facts of the case. However, the Commission allowed the complaint of the
respondent by way of the impugned order dated 9.4.2002 and awarded Rs.4 lakh
with interest @ 12% from 1.8.1992 as well as Rs.3 lakh as compensation as well as
Rs.5000/- as costs.
28. Before discussing the facts of the case, we would like to state the law
regarding Medical Negligence in India.
29. Cases, both civil and criminal as well as in Consumer Fora, are often
filed against medical practitioners and hospitals, complaining of medical negligence
against doctors/hospitals/nursing homes and hence the latter naturally would like to
know about their liability.
30. The general principles on this subject have been lucidly and elaborately
explained in the three Judge Bench decision of this Court in Jacob Mathew vs.
State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the
application of those general principles to specific cases.
31. For instance, in para 41 of the aforesaid decision it was observed :
“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 is what the law requires.”
32. Now what is reasonable and what is unreasonable is a matter on which
even experts may disagree. Also, they may disagree on what is a high level of care
and what is a low level of care.
33. To give another example, in paragraph 12 to 16 of Jacob Mathew’s case
(Supra), it has been stated that simple negligence may result only in civil liability,
but gross negligence or recklessness may result in criminal liability as well. For civil
liability only damages can be imposed by the Court but for criminal liability the
Doctor can also be sent to jail (apart from damages which may be imposed on him
in a civil suit or by the Consumer Fora). However, what is simple negligence and
what is gross negligence may be a matter of dispute even among experts.
34. The law, like medicine, is an inexact science. One cannot predict with
certainty an outcome of many cases. It depends on the particular facts and
circumstances of the case, and also the personal notions of the Judge concerned who
is hearing the case. However, the broad and general legal principles relating to
medical negligence need to be understood.
35. Before dealing with these principles two things have to be kept in mind :
(1) Judges are not experts in medical science, rather they are lay men. This itself
often makes it somewhat difficult for them to decide cases relating to medical
negligence. Moreover, Judges have usually to rely on testimonies of other doctors
which may not necessarily in all cases be objective, since like in all professions and
services, doctors too sometimes have a tendency to support their own colleagues
who are charged with medical negligence. The testimony may also be difficult to
understand, particularly in complicated medical matters, for a layman in medical
matters like a Judge; and (2) A balance has to be struck in such cases. While
doctors who cause death or agony due to medical negligence should certainly be
penalized, it must also be remembered that like all professionals doctors too can
make errors of judgment but if they are punished for this no doctor can practice his
vocation with equanimity. Indiscriminate proceedings and decisions against doctors
are counter productive and serve society no good. They inhibit the free exercise of
judgment by a professional in a particular situation.
36. Keeping the above two notions in mind we may discuss the broad general
principles relating to medical negligence.
General Principles Relating to Medical Negligence
37. As already stated above, the broad general principles of medical
negligence have been laid down in the Supreme Court Judgment in Jacob Mathew
vs. State of Punjab and Anr. (supra). However, these principles can be indicated
briefly here :
38. The basic principle relating to medical negligence is known as the
BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs.
Friern Hospital Management Committee (1957) 1 WLR 582 as follows :
“Where you get a situation which involves the use of some
special skill or competence, then the test as to whether there has
been negligence or not is not the test of the man on the top of a
Clapham omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man exercising
and professing to have that special skill. A man need not
possess the highest expert skill….. It is well-established law
that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art.”
Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case.
39. In Halsbury’s Laws of England the degree of skill and care required by a
medical practitioner is stated as follows :
“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.
Deviation from normal practice is not necessarily evidence of
negligence. To establish liability on that basis it must be shown (1)
that there is a usual and normal practice; (2) that the defendant has
not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he been
acting with ordinary care.”
(emphasis supplied)
40. Eckersley vs. Binnie (1988) 18 Con LR 1 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. He should not lag behind other ordinary
assiduous and intelligent members of his profession in the
knowledge of new advances, discoveries and developments in his
field. He should have such an awareness as an ordinarily
competent would have of the deficiencies in his knowledge and
the limitations on his skill. He should be alert to the hazards
and risks in any professional task he undertakes to the extent
that other ordinarily competent members of the profession
would be alert. He must bring to any professional task he
undertakes no less expertise, skill and care than other ordinarily
competent members of his profession would bring, but need
bring no more. The standard is that of the reasonable average.
The law does not require of a professional man that he be a
paragon combining the qualities of a polymath and prophet.”
41. A medical practitioner is not liable to be held negligent simply because
things went wrong from mischance or misadventure or through an error of
judgment in choosing one reasonable course of treatment in preference to another.
He would be liable only where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. For instance, he would be liable if he
leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau
Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or
operates on the wrong part of the body, and he would be also criminally liable if he
operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free
person. An error of judgment may or may not be negligent. It depends on the
nature of the error.
43. It is not enough to show that there is a body of competent professional
opinion which considers that the decision of the accused professional was a wrong
decision, provided there also exists a body of professional opinion, equally
competent, which supports the decision as reasonable in the circumstances. As
Lord Clyde stated in Hunter vs. Hanley 1955 SLT 213 :
“In the realm of diagnosis and treatment there is ample scope for
genuine difference of opinion and one man clearly is not negligent
merely because his conclusion differs from that of other
professional men…. The true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary
skill would be guilty of if acting with ordinary care….”
(emphasis supplied)
44. The standard of care has to be judged in the light of knowledge available
at the time of the incident and not at the date of the trial. Also, where the charge of
negligence is of failure to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time.
45. The higher the acuteness in an emergency and the higher the
complication, the more are the chances of error of judgment. At times, the
professional is confronted with making a choice between the devil and the deep sea
and has to choose the lesser evil. The doctor is often called upon to adopt a
procedure which involves higher element of risk, but which he honestly believes as
providing greater chances of success for the patient rather than a procedure
involving lesser risk but higher chances of failure. Which course is more
appropriate to follow, would depend on the facts and circumstances of a given case
but a doctor cannot be penalized if he adopts the former procedure, even if it results
in a failure. The usual practice prevalent nowadays is to obtain the consent of the
patient or of the person in-charge of the patient if the patient is not in a position to
give consent before adopting a given procedure.
46. There may be a few cases where an exceptionally brilliant doctor
performs an operation or prescribes a treatment which has never been tried before
to save the life of a patient when no known method of treatment is available. If the
patient dies or suffers some serious harm, should the doctor be held liable? In our
opinion he should not. Science advances by experimentation, but experiments
sometime end in failure e.g. the operation on the Iranian twin sisters who were
joined at the head since birth, or the first heart transplant by Dr. Barnard in South
Africa. However, in such cases it is advisable for the doctor to explain the situation
to the patient and take his written consent.
47. 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 straightway
liable for medical negligence by applying the doctrine of res ipsa loquitur. No
sensible professional would intentionally commit an act or omission which would
result in harm or injury to the patient since the professional reputation of the
professional would be at stake. A single failure may cost him dear in his lapse.
48. As observed by the Supreme Court in Jacob Mathew’s case :
“A medical practitioner faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering. He does not
gain anything by acting with negligence or by omitting to do an act.
Obviously, 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. A surgeon with shaky hands
under fear of legal action cannot perform a successful operation
and a quivering physician cannot administer the end-dose of
medicine to his patient.
If the hands be trembling with the dangling fear of facing a
criminal prosecution in the event of failure for whatever reason –
whether attributable to himself or not, neither can a surgeon
successfully wield his life-saving scalpel to perform an essential
surgery, nor can a physician successfully administer the life-saving
dose of medicine. Discretion being the better part of valour, a
medical professional would feel better advised to leave a terminal
patient to his own fate in the case of emergency where the chance of
success may be 10% (or so), rather than taking the risk of making a
last ditch effort towards saving the subject and facing a criminal
prosecution if his effort fails. Such timidity forced upon a doctor
would be a disservice to society.”
49. When a patient dies or suffers some mishap, there is a tendency to blame