DR. (MRS.) CHANDA RANI AKHOURI & ORS. versus DR. M.A. METHUSETHUPATHI & ORS. on 20 April 2022

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SUPREME COURT REPORTS

[2022] 5 S.C.R.

ADR. (MRS.) CHANDA RANI AKHOURI & ORS.

v.

DR. M.A. METHUSETHUPATHI & ORS.

(Civil Appeal No. 6507 of 2009)

BAPRIL 20, 2022

[AJAY RASTOGI AND ABHAY S. OKA, JJ.]

Medical Negligence – Consumer Protection – Liability ofdoctors – Demise of husband of appellant no.1 pursuant to kidneytransplantation – Allegation that the cause of death was post-Coperative medical negligence – Complaint before NationalConsumer Commission dismissed – Held: A medical practitioner isnot to be held liable simply because things went wrong frommischance or misadventure or through an error of judgment inchoosing one reasonable course of treatment in preference to anotherD– In practice of medicine, there could be varying approaches oftreatment – At the given time, medical practitioner would be liableonly where his conduct fell below that of the standards of areasonably competent practitioner in his field – On facts, no evidencegiven by appellants to show that it was a case of post-operativemedical negligence – All post operative medical care protocolEavailable at the command of the respondents was administered tothe patient – Still his physical condition deteriorated and finally hecould not be saved – Merely because the patient could not be saved,it cannot be considered to be a case of post operative medicalNegligence – Transplantation of Human Organs and Tissues Act,F1994.

Words and Phrases – Word “negligence” – Meaning of.

Dismissing the appeal, the Court

HELD: 1. The doctors can provide their best medicalGassistance available at their command but merely because theycould not save the patient, that could not be considered to be acase of post operative medical negligence despite the fact that inthe present case, medical protocol administered by them wasduly supported by the two medical experts of the field whoappeared on behalf of the respondents, and nothing elicitsH

from the cross-examination made by the appellants. [Para 21][823-F-H]

2. It clearly emerges from the exposition of law that amedical practitioner is not to be held liable simply because thingswent wrong from mischance or misadventure or through an errorof judgment in choosing one reasonable course of treatment inpreference to another. In the practice of medicine, there couldbe varying approaches of treatment. There could be a genuinedifference of opinion. However, while adopting a course oftreatment, the duty cast upon the medical practitioner is that hemust ensure that the medical protocol being followed by him isto the best of his skill and with competence at his command. Atthe given time, medical practitioner would be liable only wherehis conduct fell below that of the standards of a reasonablycompetent practitioner in his field. [Para 27][828-D-F]

3. The term “negligence” has no defined boundaries and ifany medical negligence is there, whether it is pre or post-operativemedical care or in the follow-up care, at any point of time by thetreating doctors or anyone else, it is always open to be consideredby the Courts/Commission taking note of the exposition of lawlaid down by this Court and each case has to be examined on itsown merits in accordance with law. [Para 28][828-G]

4. Complaints have been made with regard to the post-operative assistance / follow up care, but from the deposition oftwo witnesses which has come on record, there was a complaintmade by the patient of pain in his left forearm while he was beingdischarged on 24.11.1995 after remaining in ICU for 12 days, buthe was called upon to continue as outdoor patient and on all thelater occasions, even as per the case sheet of the patient, doctorshave treated the patient to the best of their medical knowledgeand administered the best medical care which was possible.Although the complaint of the patient which remained persistentcould not be ruled out despite medically approved drugs beingadministered 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 AB

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Amedical negligence, as is being tried to be projected by theappellants on the basis of the material placed on record.[Para 30][829-C-E]

5. The doctors are expected to take reasonable care, butno professional can assure that the patient will come back homeBafter overcoming the crisis. At the same time, no evidence hascome on record at the behest of the appellants which, in anymanner, could demonstrate that it was a case of post-operativemedical negligence or follow up care on the part of treating doctorsand both the doctors who have recorded their statements on behalfof the appellants, are not expert doctors in the field of kidneyCtransplantation. The respondents – OP Nos.1, 2 and 5 are indeedexpert doctors and qualified Nephrologists and this fact has beenadmitted by the appellants that the patient was under treatmentof the best medical professionals and qualified Nephrologists,but those treating doctors could not save the patient, that in itselfDcould not be considered to be a case of post operative medicalnegligence which was the main grievance of the appellants beforethe Commission. [Paras 31, 32][829-F-G; 830-A-B]

6. Taking note of the fact that treating doctors, OP Nos.1, 2and 5 are medical experts in the field of nephrology and so far asEOP No.6 hospital where the patient was admitted fortransplantation was duly registered under the Transplantation ofHuman Organs and Tissues Act, 1994 and all post operativemedical care protocol available at the command of therespondents was administered to the patient, still his physicalcondition deteriorated and finally he could not be saved, whichFis really unfortunate, but there cannot be a legal recourse towhat is being acceptable to the destiny. The Commission hasnot committed any manifest error in arriving to a conclusionthat in post operative medical negligence or follow up care,there was no negligence being committed by the respondentsGwhich may be a foundation for entertaining the complaint filedby the appellants. In consequence thereof, the judgment of theCommission does not call for any interference by the Court.[Paras 33, 34][830-C-E]

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DR. (MRS.) CHANDA RANI AKHOURI & ORS. v. DR. M.A.METHUSETHUPATHI & ORS.

Jacob Mathew v. State of Punjab and Another (2005) 6SCC 1 : [2005] 2 Suppl. SCR 307; Kusum Sharma andOthers v. Batra Hospital and Medical Research Centreand Others, (2010) 3 SCC 480 : [2010] 2 SCR 685and Dr. Harish Kumar Khurana v. Joginder Singh andOthers (2021) 10 SCC 291 – relied on.

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Halsbury Laws of England (Fourth Edition) – referredto.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6507of 2009.

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From the Judgment and Order dated 21.07.2009 of the NationalConsumer Disputes Redressal Commission, New Delhi in OriginalPetition No.114 of 1996.

M. S. Ganesh, Sr. Adv., T. V. S. Raghavendra Sreyas, Mrs. GayatriGulati Sreyas, Siddharth Vasudev, K. Seshachary, Advs. for theAppellants.

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Ms. Nalini Chidambaram, Sr. Adv., A. Nair, Vikas Mehta, VipinNair, P. B. Suresh, Arindam Ghosh, Karthik Jayashanakar, PrakashBaghel, K. K. Mani, Ms. T. Archana, Advs. for the Respondents.

The Judgment of the Court was delivered by F

AJAY RASTOGI, J.

1. The sad demise of husband of appellant no.1 after his longillness on 3[rd] February, 1996 has resulted in initiation of the legalproceedings at the instance of appellant no.1 along with her children ona bona fide belief that the cause of death of her late husband was postoperative medical negligence and follow-up care.

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2. The National Consumer Disputes Redressal Commission(hereinafter “the Commission”), after appreciating the material on record,including the evidence led by the parties, arrived to a conclusion that itwas not a case of post operative medical negligence as being alleged by H

Athe appellants and dismissed the complaint by the judgment impugneddated 21[st] July, 2009 which is the subject matter of appeal filed at theinstance of the appellants under Section 23 of the Consumer ProtectionAct, 1986.

3. In order to appreciate the issue involved in the instant appeal, itBmay be necessary to cull out the facts relevant for the purpose.Complainant no.1, the widow and complainant nos.2 and 3, the minorchildren of deceased Naveen Kant, jointly filed a complaint, inter alia,alleging that in the first instance in April, 1990, Naveen Kant developedhypertension and was under the treatment of Dr.P.D. Gulati, Nephrologist,but when no positive changes had come forward, Dr. Gulati advised himCfor renal transplantation and since then, Naveen Kant was under regulardialysis at the hospital in Delhi under the supervision of Dr. Gulati. Whensome of his well-wishers informed him about a reputed Nephrologist,Dr. M.A. Muthusethupathi, OP No.1 who is performing kidney transplantsurgery at Madras and after going through the entire medical record andDseeking opinion of OP No.1 and after completion of all legal formalitiesas being contemplated under the provisions of the Transplantation ofHuman Organs and Tissues Act, 1994 (hereinafter “the Act 1994”) andtaking into consideration the fact that dialysis twice a week may nothave been possible for longevity and for better life span of the patientNaveen Kant, the family took a decision to undergo for kidneyEtransplantation and on the advice of OP No.1, the patient Naveen Kantwas admitted to OP No.6 (Aswini Soundra Nursing Home), which isregistered under the Act 1994 and a kidney transplant surgery wassuccessfully performed on 12[th] November, 1995 by a team of 12 expertsheaded by OP Nos.1, 2 and 5, who are admittedly well qualified and Fexperts with wide knowledge and experience in their respective fieldsand after the medical condition of Naveen Kant was reviewed by OPNo.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 kidneytransplant of the patient have conducted more than 900-1000 renaltransplants with good results, but there are cases where patient diedGeven after successful kidney transplant for various reasons which cannotbe even under the control of the doctors.

4. It reveals from the record that despite all post operative medicaltreatment and follow up care of the patient under the supervision ofmedical experts, still the destiny could not save him and he finally diedHon 3[rd] February, 1996.

5. The complaint of the appellants was that while Naveen Kantwas discharged from OP No.6 hospital on 24[th] November, 1995, he wasasked to attend as an outdoor patient for dressing of the wound at theplace of incision, but his complaint throughout was that while he was inICU, he had a pain in his left forearm where intravenous drugs wereinjected and at the given time, he was assured that the pain would subsidein due course of time and as and when OP No.1 came for review, it wasthe consistent complaint of Naveen Kant of pain in the left forearmsince 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, OPNo.1 noticed the onset of cellulitis in Naveen Kant’s left forearm andthere was a recurrence of abscess at other points, but still the doctorsdid not take it seriously and conducted investigations into the cause ofpain and later on 16[th] December, 1995, Naveen Kant developed severeheadache coupled with loss of proper vision in the right eye and alsostarted vomiting. OP No.1 pointed out these problems to the doctordialysis in-charge of OP No.6 hospital, who used to administer necessaryI.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 he wasadministered anti convulsion injection. Although attended by OP Nos.1,3 and 5, headache, fever and pus in his left forearm still persisted. OPNo.5 made a long incision in the left forearm to drain off the pus, butbecause OP No.1 was unavailable on 30[th] December, 1995, OP No.2was 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-ray showedsome abnormal developments in the lung and that later converted intoSepticemia. Ultimately, the required potency of antibiotics administeredor the quality of these antibiotics also failed to respond. He was latermoved 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 timein unconscious stage, even after that, his condition continuouslydeteriorated and the fact is that no one attended to the complaint madeby Naveen Kant and finally he could not be saved and left for heavenlyabode on 3[rd] February, 1996. This, according to the appellants was thecause of post-operative negligence and follow up care on the part of thedoctors and the nursing staff of the hospital who had not provided propermedical care to Naveen Kant and attributed negligence on the part of A

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Athe treating doctors and the hospital and claimed special damages/ generaldamages for a total sum of Rs.95,16,174.33/-.

8. The respondents contested the complaint by filing replyaffidavits, wherein it was stated that respondent No.1 who was a treatingdoctor(OP No.1) is a Senior Nephrologist who did M.D. (GeneralBMedicines) at Stanley Medical College in 1968 and after doing his D.M.in 1977 from PGI Chandigarh, he exclusively worked and performedkidney transplantation in Government hospitals and also disclosed hisprofessional skill which he has developed, particularly in the field ofkidney transplantation and so also, the other doctors, OP No.2 Dr. S.Shivakumar and OP No.5 Dr. P.S. Venkateswaran were also the expertCdoctors in performing kidney transplantation and have a rich professionalexperience and as regards OP No.6 hospital, where kidney transplantationwas performed, it was duly registered hospital under the Act,1994 and isa fully equipped hospital for transplantation and patient Naveen Kantafter successful surgery of the kidney transplantation and after 12 daysDin ICU with all medical protocols followed and taking into considerationhis 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 tothe immediate post Transplantation Surgery period revealed that theEsurgery was successfully performed on 12[th] November, 1995 and lateron 13[th] November, 1995, the patient developed low grade fever for afew hours in the morning and there was no other evidence of any bacterialinfection and Injection Reflin was administered to him and after all testswere undertaken on 14[th] November, 1995, and taking into considerationthe positive response of the patient, he was discharged on 24[th] November,F1995 and till the date of discharge, the patient was subjected to periodicaland routine visits by the Specialist Surgeons, Nephrologists and wasunder a constant medical observation. The medical observation of thepatient as seen from the case sheet is extracted hereunder:

“Afebre – No Fever.GLungs clearCVS S1 S2 – Normal Sound (Cardio Vascular System)

Abdomen – Soft-Mild distention.

NAD – Nothing abnormal detected.

HNo Oedema – No swelling throughout the body.”

10. On 17[th] November 1995, the Urinary catherer tip grewklebsiella on culture for which Ciprofloracin was started. On 24[th]November, 1995, the patient was discharged after remaining under postoperative care for 12 days. Although complaints are made by the patientof its own kind, but he was always attended and taken care of and whenthe patient was called upon to continue to attend as an outdoor patient,all medical assistance possible at the command of the respondents wasextended to him. It is unfortunate that the patient could not be saveddespite the best medical assistance being extended to him by the expertsof the field.

11. On behalf of the complainant, evidence was led by Mrs. VimlaAkhori, relative of appellant no.1, Dr.(Mrs.) Minii Rani Datta, sister ofappellant no.1, Col. Dr. Ashok Chopra, MBBS General Surgery andDr.(Mrs.) Sophia Ahmed, as medical experts who are undisputedly notthe Nephrologists. So far as the first two witnesses (relatives of appellantno.1) are concerned, they have just narrated the statement of fact whichwas narrated to them by the appellants being their relative and both thewitnesses Dr. Ashok Chopra and Dr. Sophia Ahmed was neither expertof kidney transplantation nor a qualified Nephrologist.

12. So far as the so-called expert evidence adduced by theappellants before the Commission is concerned, Dr. Ashok Chopra, whowas a Consultant Surgeon in the BSES Global Hospital at Andheri (West),Mumbai, admittedly passed out his MBBS examination in the year 1974and only performed general surgery during his tenure in the Army andlater left the Army and served as Surgeon in Bareilly and later becamea Surgeon in BSES Hospital, Andheri (West), Mumbai, although statedin his affidavit obviously based on the case sheet of the patient that therespondents have not taken post operative care of the patient and havefailed to control and treat infection that has manifested itself in the formof persistent pain in the left forearm of the patient at the place where aneedle had been inserted for injection of drugs in the OCU of OP No.6.Timely and adequate medical intervention was absent in post operativemedical treatment to the patient and also opinion was expressed by himregarding the drugs administered to the patient and also stated about thetime the patient was discharged after 12 days of his surgery andrehospitalization of the patient in OP No.4 hospital on 21[st] December,1995 which was not a registered hospital under the Act, 1994 and thepatient should have been admitted in OP No.6 hospital which was AB

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Aregistered where the kidney transplantation was performed and on thisaccount, OP No.1 has failed to perform his duty towards the patient byallowing him to be lodged in an unregistered hospital i.e. OP No.4. Althoughit has been admitted by him that the operation was successful, but becauseof the lackadaisical attitude and post operative care not being properlyadministered to the patient, it created abscess and went into septicemia,Bwhich could easily have been retrieved out of the dangerous infectionleading to multi organ failure and in this way has expressed his opinionthat there was a post operative negligence on the part of the respondents.

13. The second expert witness appeared on behalf of the appellantswas Dr. Sophia Ahmed. She took MBBS from Patna Medical CollegeCand later did internship in Internal Medicines at Queens Hospital, CentralNew York and remained as a resident in Neurology at University Hospitalsand Clinics at USA for almost three years and has a Fellowship in ClinicalNeurophysiology and Epilepsy. With no expert knowledge of the subjectbased on the medical reports made a statement of a medical negligenceDbeing performed by the respondents and expressed her opinion that inthe post transplant phase, patient manifested clear symptoms of infectionwhile in the ICU and the patient was not recovered adequately fornosocomial infection and his manifest problems and indicators were notaddressed by the attending doctors with seriousness and urgency and atcritical junctures, the retained nephrologist displayed complete lack ofEprofessional concern for the patient and this according to her was a postoperative medical negligence being committed by the respondents andonly because of their lackadaisical attitude, they lost their patient.

14. On the other hand, the respondents who indeed werethemselves qualified Nephrologists and experts in the field of kidneyFtransplant operations and this fact is not disputed by the appellants aswell in support thereof have produced two expert witnesses, Dr. S. Sundarand Dr. Arun Kumar, who are qualified Nephrologists.

15. Dr. S. Sundar, Director and Chief Nephrologist of KarnatakaNephrology and Transplant Institute, Bangalore stated that out of hisGlong experience in having performed more than thousand kidneytransplantation surgeries in the past 22 years and based on the evidenceof literature relating to kidney transplantation, increase in total count(leucocytes) is a common phenomenon in most of the renal transplantrecipients, who have been administrated Corticosteroids. Sometimes,Hrise in total counts does not per se mean infection but there is no reason

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 thepost transplant period in absence of any infection that only proves lackof experience and medical knowledge of renal transplant. The witnesshas further stated that on 30[th] November 1995, when the patient wasdiagnosed cellulitis/abscess, injection Reflin was administered by OPNo.1 which was the best medicine for cellulitis and it is a common practiceto use this drug in such a situation. It was further stated by him thatmedical science is not an exact science like mathematics and in medicalscience experience of doctor treating the patient is important. It hasbeen further averred by him that most transplant patients having feverare treated with drugs like Amikacin and Ciprofloxacin to cover a broaderspectrum of organisms in the absence of definitive evidence of organismcausing fever. It has been further stated by him that in the field of kidneytransplantation and Nephrology, it is very difficult to diagnose and manageany infection in a Kidney Transplant patient and the reasons are many.These are:

(a) Cultures of body fluids (blood, urine, pus, etc.) are oftennegative.

(b) Even if an organism is isolated, it is not always possible to becertain that the particular organism is the actual cause of fever.

(c) Many of the antibiotics have deleterious effects on thetransplanted kidney, thereby necessitating great care in drugselection and dosage.

(d) Un-related donor transplantation need more immune-suppression for the kidney to survive and therefore is more proneto infection.

16. Dr. Arun Kumar, who was also produced on behalf of therespondents, was also a Professor of Surgery, Head of the Departmentof Surgery, Coimbatore Medical College, Tamil Nadu also stated in hisaffidavit that he has been a kidney transplant surgeon since 1986 andhas performed over 1140 renal transplantations. In clinical practice, positivefindings, if any, are always noted in the case records and after goingthrough the record history of the patient, it was stated by him that he didnot find any evidence of infection at the time of discharge of the patientfrom OP No.6.

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A17. The Commission, after taking into consideration the pleadingsso also the evidence on record arrived to a conclusion that the patientNaveen Kant was under the hands of the expert team of doctors andpossible medical care at the command of the doctors was fullyadministered to him and after being discharged from the hospital on 24[th]November, 1995, still thereafter he was continued to be under treatmentBand merely because the expert team of doctors could not save him afterhis prolonged illness and he died on 3[rd] February, 1996 that in itself couldnot be considered to be a case of post operative medical negligence andin consequence thereto dismissed the complaint filed at the instance ofthe appellants under judgment impugned dated 21[st] July, 2009.C

18. It is not disputed by counsel for the appellants that the kidneytransplantation of the patient on 12[th] November, 1995 was successfuland they had complained but the complaint is only in reference to postoperational medical negligence as the respondents have failed to dischargetheir statutory duty of care and medical protocols subsumed thereunder,Dincluding follow up care and that according to the appellants is a medicalnegligence on the part of the respondents in extending treatment to thepatient 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 patientEwas consistently complaining after he being successfully operated on12[th] November, 1995 and shifted to the ICU for pain in the left forearmwhere intravenous drugs were injected to him and when the patient wasattended by OP No.1 for review, he reiterated his complaint of pain inthe left forearm and still he was discharged from the hospital on 24[th]November, 1995. Later, the patient noticed the onset of cellulitis andFrecurrence of abscess being at other points, still the doctors have nottaken his complaint seriously and conducted investigations into the causeof pain and later he developed severe headache, coupled with loss ofproper vision in the right eye and started vomiting. These facts can besupported by the prescription chart of the patient and that was the reasonGfor which the patient was again admitted in the hospital of OP No.4 on21[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 drainout the pus, but since OP No.1 was not available, his condition deterioratedand finally left for heavenly abode on 3[rd] February, 1996 and this facthas been established from the evidence placed on record of theH

complainant and other witnesses including the two doctors, who as anexpert appeared and recorded a deposition in support of kind of postoperative medical negligence committed by the respondents. TheCommission, according to the counsel, although noticed these facts buthas not at all appreciated the evidence on record and thus, afterreproduction of the facts adduced by the parties, dismissed the complaintin 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 whetherit was a case of post operative medical negligence, the reason for whichappellant no.1 has lost her husband.

20. Per contra, counsel for the respondents, while supporting thefindings recorded by the Commission under the impugned judgment,submits that it is not the case of the appellants that there was any slacknesson the part of the team of the doctors while the patient was being operated/underwent kidney transplant on 12[th] November, 1995 which wasadmittedly successfully performed by the qualified team of doctors headedby OP No.1 and OP No.5 and thereafter the patient was shifted to ICUfor post operative treatment and even thereafter he was completelyunder medical supervision and got discharged on 24[th] November, 1995with further instructions that he should remain as an outdoor patient untilthe doctors advise him to leave the city and the reason was that as anoutdoor patient, dressing of wounds at the place of incision is always tobe taken proper care. So far as the complaint of pain in the left forearmis concerned, these are some complaints which the patients normallymake but it is always taken care of and the time heals complaints of thepatient, but still all medical assistance which was possible under thecommand of the qualified doctors was extended to him. It is true thatunfortunately, appellant no.1 has lost her husband but this all is destiny.

21. The doctors can provide their best medical assistance availableat their command but merely because they could not save the patient,that could not be considered to be a case of post operative medicalnegligence despite the fact that medical protocol administered by themwas duly supported by the two medical experts of the field who appearedon behalf of the respondents, Dr. S. Sundar and Dr. Arun Kumar, andnothing elicits from the cross-examination made by the appellants. Inthe given circumstances, the findings which has been returned by theCommission needs no further interference by this Court.

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A22. We have heard learned counsel for both the parties and withtheir assistance perused the material placed on record. In order toappreciate the opinion of the Commission, it will be apposite to takenote of the legal principles which would apply in the case of medicalnegligence.B23. In the case of medical negligence, this Court in Jacob Mathew B23. In the case of medical negligence, this Court in Jacob Mathewv. State of Punjab and Another[1 ]dealt with the law of medical negligencein respect of professionals professing some special skills. Thus, anyindividual approaching such a skilled person would have a reasonableexpectation under the duty of care and caution but there could be noCassurance of the result. No doctor would assure a full recovery in everycase. At the relevant time, only assurance given by implication is that hepossessed the requisite skills in the branch of the profession and whileundertaking the performance of his task, he would exercise his skills tothe best of his ability and with reasonable competence. Thus, the liabilitywould only come if (a) either a person (doctor) did not possess theDrequisite skills which he professed to have possessed; or (b) he did notexercise with reasonable competence in given case the skill which hedid possess. It was held to be necessary for every professional to possessthe highest level of expertise in that branch in which he practices. It washeld that simple lack of care, an error of judgment or an accident, is notEproof of negligence on the part of the medical professional. This Courtheld as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to dosomething which a reasonable man guided by those considerationsFwhich ordinarily regulate the conduct of human affairs would do,or doing something which a prudent and reasonable man wouldnot do. The definition of negligence as given in Law of Torts,Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred tohereinabove, holds good. Negligence becomes actionable onGaccount of injury resulting from the act or omission amounting tonegligence attributable to the person sued. The essentialcomponents of negligence are three: “duty”, “breach” and“resulting damage”.

(2) Negligence in the context of the medical profession necessarilycalls for a treatment with a difference. To infer rashness ornegligence on the part of a professional, in particular a doctor,additional considerations apply. A case of occupational negligenceis different from one of professional negligence. A simple lack ofcare, an error of judgment or an accident, is not proof of negligenceon the part of a medical professional. So long as a doctor followsa practice acceptable to the medical profession of that day, hecannot be held liable for negligence merely because a betteralternative course or method of treatment was also available orsimply because a more skilled doctor would not have chosen tofollow or resort to that practice or procedure which the accusedfollowed. When it comes to the failure of taking precautions, whathas to be seen is whether those precautions were taken whichthe ordinary experience of men has found to be sufficient; a failureto use special or extraordinary precautions which might haveprevented the particular happening cannot be the standard forjudging the alleged negligence. So also, the standard of care, whileassessing the practice as adopted, is judged in the light ofknowledge available at the time of the incident, and not at thedate of trial. Similarly, when the charge of negligence arises outof failure to use some particular equipment, the charge would failif the equipment was not generally available at that particular time(that is, the time of the incident) at which it is suggested it shouldhave been used.

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(4) The test for determining medical negligence as laid downin Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586]holds good in its applicability in India.

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(8) Res ipsa loquitur is only a rule of evidence and operates inthe domain of civil law, specially in cases of torts and helps indetermining the onus of proof in actions relating to negligence. Itcannot be pressed in service for determining per se the liabilityfor negligence within the domain of criminal law. Res ipsaloquitur has, if at all, a limited application in trial on a charge ofcriminal negligence.”

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826SUPREME COURT REPORTS

A24. The term “negligence” has been defined in Halsbury Laws ofEngland (Fourth Edition) para 34 and as settled in Kusum Sharma andOthers v. Batra Hospital and Medical Research Centre and Others[2]as under:

“45. According to Halsbury’s Laws of England, 4th Edn., Vol.B26 pp. 17-18, the definition of negligence is as under:

“22. Negligence.—Duties owed to patient. A person who holdshimself out as ready to give medical advice or treatmentimpliedly undertakes that he is possessed of skill and knowledgefor the purpose. Such a person, whether he is a registeredCmedical practitioner or not, who is consulted by a patient, oweshim certain duties, namely, a duty of care in deciding whetherto undertake the case; a duty of care in deciding what treatmentto give; and a duty of care in his administration of thattreatment. A breach of any of these duties will support an actionfor negligence by the patient.”D

25. In para 89 of the judgment in Kusum Sharma (supra), thetests of medical negligence while deciding whether the medicalprofessional is guilty of medical negligence, varied tested principles haveto be kept in view, this Court held as under:

E“89. On scrutiny of the leading cases of medical negligence bothin our country and other countries specially the United Kingdom,some basic principles emerge in dealing with the cases of medicalnegligence. While deciding whether the medical professional isguilty of medical negligence following well-known principles mustbe kept in view:F

I. Negligence is the breach of a duty exercised by omissionto do something which a reasonable man, guided by thoseconsiderations which ordinarily regulate the conduct of humanaffairs, would do, or doing something which a prudent andreasonable man would not do.

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II. Negligence is an essential ingredient of the offence. Thenegligence to be established by the prosecution must be culpableor gross and not the negligence merely based upon an error ofjudgment.

H2 (2010) 3 SCC 480

III. The medical professional is expected to bring areasonable degree of skill and knowledge and must exercise areasonable degree of care. Neither the very highest nor a verylow degree of care and competence judged in the light of theparticular circumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where hisconduct fell below that of the standards of a reasonably competentpractitioner in his field.

V. In the realm of diagnosis and treatment there is scopefor genuine difference of opinion and one professional doctor isclearly not negligent merely because his conclusion differs fromthat of other professional doctor.

VI. The medical professional is often called upon to adopt aprocedure which involves higher element of risk, but which hehonestly believes as providing greater chances of success for thepatient rather than a procedure involving lesser risk but higherchances of failure. Just because a professional looking to thegravity of illness has taken higher element of risk to redeem thepatient out of his/her suffering which did not yield the desiredresult may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long ashe performs his duties with reasonable skill and competence.Merely because the doctor chooses one course of action inpreference to the other one available, he would not be liable if thecourse of action chosen by him was acceptable to the medicalprofession.

VIII. It would not be conducive to the efficiency of themedical profession if no doctor could administer medicine withouta halter round his neck.

IX. It is our bounden duty and obligation of the civil societyto ensure that the medical professionals are not unnecessarilyharassed or humiliated so that they can perform their professionalduties without fear and apprehension.

X. The medical practitioners at times also have to be savedfrom such a class of complainants who use criminal process as atool for pressurising the medical professionals/hospitals, particularly A

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Aprivate hospitals or clinics for extracting uncalled for compensation.Such malicious proceedings deserve to be discarded against themedical practitioners.

XI. The medical professionals are entitled to get protectionso long as they perform their duties with reasonable skill andBcompetence and in the interest of the patients. The interest andwelfare of the patients have to be paramount for the medicalprofessionals.”

26. In a recent judgment in Dr. Harish Kumar Khurana v.Joginder Singh and Others[3], this Court held that the hospital and doctorsCare required to exercise sufficient care in treating the patients in allcircumstances. However, in an unfortunate case death may occur. Itwill be necessary that sufficient material on medical evidence should beavailable before the adjudicating authority to arrive at a conclusion thatthe death is due to medical negligence. Even death of a patient cannot,on the face of it, be considered to be medical negligence.D

27. It clearly emerges from the exposition of law that a medicalpractitioner is not to be held liable simply because things went wrongfrom mischance or misadventure or through an error of judgment inchoosing one reasonable course of treatment in preference to another.In the practice of medicine, there could be varying approaches ofEtreatment. There could be a genuine difference of opinion. However,while adopting a course of treatment, the duty cast upon the medicalpractitioner is that he must ensure that the medical protocol being followedby him is to the best of his skill and with competence at his command. Atthe given time, medical practitioner would be liable only where his conductFfell below that of the standards of a reasonably competent practitionerin his field.

28. The term “negligence” has no defined boundaries and if anymedical negligence is there, whether it is pre or post-operative medicalcare or in the follow-up care, at any point of time by the treating doctorsGor anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Courtof which a detailed reference has been made and each case has to beexamined on its own merits in accordance with law.

H3 (2021) 10 SCC 291

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 ofkidney transplantation. Respondent nos.1, 2 and 5 had disclosed theirqualifications of which a detailed discussion is not required and theirmedical expertise in the field of nephrology and surgery in kidneytransplantation has not been doubted by the appellants. It is also not thecase of the appellants that the patient was not medically treated by thewell-qualified doctors at the time when kidney transplant surgery wasundertaken on 12[th] November, 1995 by the team of doctors including OPNos.1, 2 and 5 in the OP No.6 hospital which is a registered hospitalunder the Act 1994.

30. Complaints have been made with regard to the post-operativeassistance / follow up care, but from the deposition of two witnesseswhich has come on record, there was a complaint made by the patientof pain in his left forearm while he was being discharged on 24[th]November, 1995 after remaining in ICU for 12 days, but he was calledupon to continue as outdoor patient and on all the later occasions, evenas per the case sheet of the patient, doctors have treated the patient tothe best of their medical knowledge and administered the best medicalcare which was possible. Although the complaint of the patient whichremained persistent could not be ruled out despite medically approveddrugs being administered to him and if the patient could not be finallysaved, that in itself could not be considered to be a case of post operativemedical negligence, as is being tried to be projected by the appellants onthe basis of the material placed on record.

31. The doctors are expected to take reasonable care, but noprofessional can assure that the patient will come back home afterovercoming the crisis. At the same time, no evidence has come on recordat the behest of the appellants which, in any manner, could demonstratethat it was a case of post-operative medical negligence or follow upcare on the part of treating doctors and both the doctors who haverecorded their statements on behalf of the appellants, Dr. Ashok Chopraand Dr. Sophia Ahmed, are not expert doctors in the field of kidneytransplantation. Merely because they are doctors by profession, what isbeing expressed by both of them in the affidavits filed before theCommission would not be considered to be an opinion of experts.

32. On the contrary, the two experts who have deposed on behalfof the respondents, Dr. S. Sundar and Dr. Arun Kumar are admittedly AB

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Aexperts of the field. At the same time, the respondents – OP Nos.1, 2and 5 are indeed expert doctors and qualified Nephrologists and this facthas been admitted by the appellants that the patient was under treatmentof the best medical professionals and qualified Nephrologists, but thosetreating doctors could not save the patient Naveen Kant, that in itselfcould not be considered to be a case of post operative medical negligenceBwhich was the main grievance of the appellants before the Commission.

33. After going through the findings which have been returned bythe Commission in the order impugned, we see no reason to differ withthe view expressed by the Commission keeping in mind the testsenunciated above. Taking note of the fact that treating doctors, OP Nos.1,C2 and 5 are medical experts in the field of nephrology and so far as OPNo.6 hospital where the patient was admitted for transplantation wasduly registered under the Act, 1994 and all post operative medical careprotocol available at the command of the respondents was administeredto the patient, still his physical condition deteriorated and finally he couldDnot be saved, which is really unfortunate, but there cannot be a legalrecourse to what is being acceptable to the destiny.

34. In our opinion, the Commission has not committed any manifesterror in arriving to a conclusion that in post operative medical negligenceor follow up care, there was no negligence being committed by theErespondents which may be a foundation for entertaining the complaintfiled by the appellants. In consequence thereof, the judgment of theCommission 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-operative care, wasFnot registered under the provisions of the Act 1994. With the assistanceof the counsel for the parties, we have gone through the Scheme of theAct 1994 and the Rules made thereunder. The hospitals where theprocedure of transplantation is undertaken are to be registered in termsof Section 14 of the Act 1994, but for post-operative care, particularlyafter the patient being discharged from the hospital where the procedureGof transplantation has taken place, we have not come across any provisionunder the Act, 1994 where such hospitals are required to be registeredunder the Act 1994.

36. Before parting, we would like to observe that when the matterwas finally heard and concluded, appellant no.1 was present in CourtH

and we made a request as to whether she is still interested to get theAfinal judicial verdict on the issue which has been raised at her instance atone stage by instituting a complaint before the Commission. The appellantmade a very candid statement before the Court that she wants now tosum up the matter and what she has lost is, in no manner, recoverableand compensation even if awarded by this Court is not going to be ofBany solace to her at this point of time. We realize the pain of losing herhusband and the trauma she has suffered, but that cannot translate intoa legal remedy.

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37. Accordingly, we do not find any fault in the reasoning of theCommission, as a result, the appeal is without substance and deserves tobe dismissed.

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38. The appeal is accordingly dismissed. No costs.

39. All pending application(s) shall stand disposed of.

Bibhuti Bhushan Bose

(Assisted by : Rakhi, LCRA)

DAppeal dismissed.

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