BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE versus ASHA JAISWAL & ORS. on 30 November 2021

SUPREME COURT REPORTS

[2021] 10 S.C.R.

ABOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE

v.

ASHA JAISWAL & ORS.

(Civil Appeal No. 1658 of 2010)

BNOVEMBER 30, 2021

[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]

Consumer Protection – Medical negligence – When not –Complaint filed against appellants-hospital and doctor, allegingmedical negligence in treating the patient-deceased – CompensationCawarded by NCDRC – On appeal, held: Patient was in seriouscondition impending gangrene even before admission to the hospital– Thus, even after surgery and re-exploration, if the patient doesnot survive, the fault cannot be fastened on the doctors as a case ofmedical negligence – A doctor is expected to provide reasonableDcare which is not proved to be lacking in the present case –Complainant led no evidence of experts to prove the alleged medicalnegligence except their own affidavits – Medical record produceddoes not show any omission in the manner of treatment – Experts ofdifferent specialities and super-specialities of medicine wereavailable to treat the patient – Sole basis of finding the appellantsEnegligent was res ipsa loquitor which would not be applicable keepingin view the treatment record produced by the hospital and the doctor– There was never a stage when the patient was left unattended –Digital Sub-Traction Angiography (DSA test) was conducted by thehospital however, since it became dysfunctional, considering theFcritical condition of the patient, an alternative angiography testwas advised and conducted and the re-exploration was thus planned– If the operation theatres were occupied at the time when theoperation of the patient was contemplated, it cannot be said thatthere is a negligence on the part of the hospital – Order passed byNCDRC set aside – Complaint dismissed.G

Tort – res ipsa loquitor – Applicability of – Discussed.

Allowing the appeals, the Court

HELD: 1.1 The Commission while analyzing the evidenceobserved that the complainant had filed evidence affidavits butH

the Hospital and the Doctor, though have filed their writtenversions, but have not filed evidence by way of affidavits exceptan affidavit of Dr. ‘K’. Such primary observation is itselferroneous. The Hospital and the Doctor had filed their writtenversion by way of affidavit dated 7.1.2000 i.e., the same date onwhich Dr. ‘K’ had filed an affidavit. The Commission hasoverlooked the fact that written version is by way of an affidavit.Later, the Hospital had also filed evidence affidavit on 13.07.2009whereas the Doctor had filed a short affidavit on 30.8.2009reiterating and confirming the statements, averments and thecontentions raised in the written version filed on 7.1.2000. Thus,there is factual error in the order of the Commission. The basisof finding the Doctor negligent in providing medical care is notsustainable as there are both legal and factual errors in thefindings recorded by the Commission. Gangrene was not foundto be impending after few days of admission to the Hospital buteven before the patient was admitted. The patient was incritical condition when the Doctor was consulted on 21.4.1998and surgery was thereafter performed within two days.[Paras 13, 17 and 18][1131-B-D; 1132-G-H; 1133-B]

1.2 The non-working of the DSA machine and consequentdelay in performing the test cannot be said to be negligence onthe part of the Doctor or the Hospital. The DSA machine is alarge, expensive and complicated machine which unfortunatelydeveloped certain technical problem at the time when patienthad to be tested. Any machine can become non-functional becauseof innumerable factors beyond the human control as the machinesinvolve various mechanical, electrical and electronic components.The DSA test was conducted in the Hospital on 22.4.1998 andhence DSA machine cannot be said to be dysfunctional for a longtime. The alternative process to determine the blood flow wascarried out by angiography and the decision for re-explorationwas taken at 12.30 p.m. No fault can be attached to the Hospitalif the operation theatres were occupied when the patient wastaken for surgery. Operation theatres cannot be presumed to beavailable at all times. Therefore, non-availability of an emergencyoperation theatre during the period when surgeries were beingperformed on other patients is not a valid ground to hold the A

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AHospital negligent in any manner. There is no proof that therewas any negligence in performing the surgery on 23.4.1998 or inthe process of re-exploration on 24.4.1998. The allegation is offailure of the Doctor to take the follow-up action after surgery on23.4.1998, a delayed decision to amputate the leg subsequent tore-exploration on 24.4.1998, and the alleged undue foreign visitBof the Doctor. In respect to such contention of the Doctor beingon a foreign visit, it is well known a medical professional has toupgrade himself with the latest development in his field whichmay require him to attend conferences held both in and outsidethe country. Mere fact that the Doctor had gone abroad cannotClead to an inference of medical negligence as the patient wasadmitted in a hospital having specialists in multi-faculties. It is acase where the patient was in serious condition impendinggangrene even before admission to the Hospital but even aftersurgery and re-exploration, if the patient does not survive, thefault cannot be fastened on the doctors as a case of medicalDnegligence. It is too much to expect from a doctor to remain onthe bed side of the patient throughout his stay in the hospitalwhich was being expected by the complainant here. A doctor isexpected to provide reasonable care which is not proved to belacking in any manner in the present case. [Paras 19, 23, 24 andE26][1133-C-F; 1134-G-H; 1135-A-B, G-H; 1136-A-B]

1.3 The sole basis of finding of negligence against theHospital is of res ipsa loquitor. Res ipsa loquitor is a rule of evidence.The complainant had led no evidence of experts to prove thealleged medical negligence except their own affidavits. TheFexperts could have proved if any of the doctors in the Hospitalproviding treatment to the patient were deficient or negligent inservice. A perusal of the medical record produced does not showany omission in the manner of treatment. The experts of differentspecialities and super-specialities of medicine were available totreat and guide the course of treatment of the patient. The doctorsGare expected to take reasonable care but none of the professionalscan assure that the patient would overcome the surgicalprocedures. Dr. ‘K’ has been attributed to have informed thecomplainant that the patient’s legs were not working but Dr. ‘K’denied all the averments by filing of an affidavit. The sole basis ofHfinding the appellants negligent was res ipsa loquitor which would

not be applicable herein keeping in view the treatment recordproduced by the Hospital and/or the Doctor. There was never astage when the patient was left unattended. The patient was in acritical condition and if he could not survive even after surgery,the blame cannot be passed on to the Hospital and the Doctorwho provided all possible treatment within their means andcapacity. The DSA test was conducted by the Hospital itself on22.4.1998. However, since it became dysfunctional on 24.4.1998and considering the critical condition of the patient, an alternativeangiography test was advised and conducted and the re-exploration was thus planned. It is only a matter of chance thatall the four operation theatres of the Hospital were occupied whenthe patient was to undergo surgery. The expectation of the patientto have an emergency operation theatre is not reasonable as thehospital can provide only as many operation theatres as the patientload warrants. If the operation theatres were occupied at the timewhen the operation of the patient was contemplated, it cannot besaid that there is a negligence on the part of the Hospital. Thefindings recorded by the Commission holding the Hospital andthe Doctor guilty of medical negligence are not sustainable inlaw. The order passed by the Commission is set aside and thecomplaint is dismissed. [Paras 27, 35-37][1136-B; 1144-A-H;1145-A]

Syad Akbar v. State of Karnataka (1980) 1 SCC 30 :[1980] 1 SCR 95; Iffco Tokio General InsuranceCompany Limited v. Pearl Beverages Limited (2021) 7SCC 704 : 2021 (4 ) JT 345; Martin F. D’Souza v.Mohd. Ishfaq (2009) 3 SCC 1 : [2009] 3 SCR 273;Jacob Mathew v. State of Punjab and Anr (2005) 6 SCC1 : [2005] 2 Suppl. SCR 307; Arun Kumar Manglik v.Chirayu Health and Medicare Private Limited and Anr.(2019) 7 SCC 401 : [2019] 3 SCR 281; C.P. Sreekumar(Dr.), MS (Ortho) v. S. Ramanujam (2009) 7 SCC 130: [2009] 7 SCR 272; Kusum Sharma and Others v. BatraHospital and Medical Research Centre and Others(2010) 3 SCC 480 : [2010] 2 SCR 685; Dr. HarishKumar Khurana v. Joginder Singh & Others (2021) SCCOnline SC 673 – relied on.

Whitehouse v. Jordan and Anr [1981] 1 Weekly LawReports 246 – referred to.

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Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal No.1658of 2010.

CFrom the Judgment and Order dated 06.01.2010 of the NationalConsumer Disputes Redressal Commission, New Delhi in OriginalPetition No.251 of 1999.

With

Civil Appeal No.2322 of 2010.DSiddharth Bhatnagar, Sr. Adv., Ms. Sonia Nigam, Ms. NehaKhanelwal, Ms. Nadeem Afroz, Aditya Sidhra, Ms. Pracheta Kar, M/sKaranjawala & Co., Ms. Bina Madhavan, S. Udaya Kumar Sagar, Ms.Vishwaya Rao, M/s Lawyer S Knit & Co., Vishal Bhatnagar, AshwaniKumar, Ms. Iti Sharma, Anshul Dhatwalia, Ms. Ishu Manaksia, AnilKumar, Kamal Mohan Gupta, Advs. for the appearing parties.

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The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. The present appeals are directed against an order passed bythe National Consumer Disputes Redressal Commission[1] on 06.01.2010against the appellants i.e., Bombay Hospital & Medical Research Centre[2]Fand Dr. C. Anand Somaya[3], directing to pay a sum of Rs. 14,18,491/-along with interest @ 9% p.a. from the date of filing of the complaint tillthe date of payment.

2. The complaint was filed before the Commission by the legalheirs[4] of the deceased - patient Dinesh Jaiswal[5], alleging medicalGnegligence on the part of the Hospital and the Doctor in treating the H

1 For short, the ‘Commission’

2 For short, the ‘Hospital’

3 For short, the ‘Doctor’

4 For short, the ‘Complainant’

5 For short, the ‘patient’

patient.The patient was admitted tothe Hospital on 22.04.1998 andbreathed his last on 12.06.1998. The Hospital charged a sum of Rs.4,08,800/- for the treatment of the patient during the period of his admissionin the Hospital. The said amount is included in and is part of the amountof compensation awarded against the appellants herein.

3. The patient was taking treatment since 1990 for havingdifficulties in walking due to the pain and discomfort in legs. For hiscomplaint of inability to walk, a Colour Doppler Test was conducted on13.04.1998 at Khemuka X-Ray & Ultrasound Clinic, Nagpur whichdetected the following:

“Aneurismal dilatation of the lower abdominal aorta just abovebifurcation is seen. The aneurism measures 5.4 x 2.6 in itsmaximum dimensions.

Irregular thrombus is seen within the aneurism on colour flowstudies.

Prostate is normal in echo – pattern and measures 4 x 3 x 3cms.Prostatic capsule is intact. Urinary bladder is normal in capacityand contour. Post void residual urine is not significant.

Impression: Mild hepatomegaly with aneurism of lower abdominalaorta just above the bifurcation.”

4. Dr. K.G. Deshpande Memorial Center, Nagpur was consultedby the patient on 15.04.1998 and Dr. Deshpande diagnosed the following:

“A case of Abd Aortic Aneurysum

Involvement on left side

with Left PVB (Embolism)

H/O Trauma 1983,Pain Left LL 1990 S/O Embolism Vascular Duplex Seen S/O Large Abd. A. Aneurysum 6*3*5.1cm Adv- Urgent Surgical repair of the aneurysum”

5. After diagnosis, Dr. Deshpande referred the patient to theappellant-Doctor who is a Vascular Surgeon. The patient consulted theappellant-Doctor on 21.4.1998. The Doctor ordered the admission of A

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Athe patient as an urgent case of aorta aneurysum. On 22.4.1998, theDoctor advised urgent DSA/CAT Scan [Digital Sub-Traction Angiographyand Computerized Axial Tomography] and surgery after noticing thefollowing physical conditions:

“A 42 years old male with aorta pain left lower limb and right legBbelow knee.Gradual Claudication BP – 100/80

Ischaemic changes both lower limbs. Seen with impendingGangrene CBoth legs left muscles are tested.

………………………………….”

6. The Doctor after examining the patient recorded that therewere ischemic changes in both lower limbs and also noted an impendinggangrene. Subsequent to the pre-operative preparations, surgery wasDconducted on 23.04.1998 by a team of surgeonsincluding Dr.Partha andDr. Bindra, led by the appellant-Doctor. The operation notes read asthus:

“On inspection there was a huge aneurysum on the latral aspecton left side arising infra renal.

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It was densely adherent to the surrounding structure. Theaneurysum was directed out. The tape was passed around theleft Renal artery/vein for retraction. A tape was passed aroundthe aorta just below the renal artery and above the aneurysum.Both the common iliac arteries were exposed. Tapes were passedFaround both the iliac arteries.

After achieving proper exposure/slinging around all the vessels.The aorta was iron clamped just infra-renally. The aneurysumopened out. The aorta transected and both illiacs transected. (APTFE ‘Y’ Limb Graft) was sutured in place. The short main limbGto the aorta using continuous prolure and both the limbs of thegraft were sutured to the common iliacs end to end anastomosison right side. After checking the flow in the graft after suture theupper end the lower anastomosis were done.

On the left side, the side of the graft was sutured the end of theHcommon iliac. The limb of the graft further brought down through a tunnel to the femoral artery and the end of the graft sutured tothe side of the femoral artery.

After achieving proper haemostasis and checking the pulsation.

Intra-operatively, the abdomen closed using drainage tubes.

The patient was later shifted to recovery room on ventilator withstable vital signs.”

7. It is the case of the complainant that on 24.4.1998 at about 4am, that is the night after surgery, the nurse who was attending thepatient observed that the pulsation of the patient had become feeble andbody temperature was low and the lower limbs had gone cold. The relativeswere informed at about 7 a.m. that the patient was unconscious, legswere cold with no pulsation. The complainant further alleged that thenurse had informed the Doctor at 4 am but he came only at 9.30 a.m.The patient upon assessment by the Doctor was directed to get secondDSA test but DSA machine was out of order. Hence, the Doctor advisedangiography but the patient was made to wait for both DSA test as wellas for angiography. One Dr. B.K. Goyal examined the patient andreported that the patient had probably developed block of abdominalaorta.

8. The angiography conducted at 12.30 pm on 24.4.1998 showeda block (clot) at the graft due to which the blood supply to the lowerlimbs had totally stopped. The complainant contended that the earliersurgery was not performed correctly and there was negligence inconducting the same. A decision was taken to re-explore the earliersurgery done at about 3:30 pm but since all the four operation theatreswere occupied, he could only be taken to the operation theatre for re-grafting at 5.30 p.m. As there was no pulsation in the graft and therewas clot in the graft extending into both limbs of the graft, a fresh graftwas sutured and the patient was shifted to recovery room and put onventilator.

9. It was contended by the Hospital that the patient was in thecare of qualified doctors such as Dr. Nemish Shah, Dr. J. A.Pachore,Dr. A.L. Kripalani, Dr. Partha, Dr. H.S. Bindra and many othersthroughout his course of admission and no stone was left unturned toascertain the complications and treat the same. Various specialist doctorswere treating the patient and medicines/treatment was timely regulatedand changed as and when required on a daily basis. Regular daily dialysis, A

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Adressing of wounds etc. were also done. However, unfortunately, despitethe best efforts of the qualified doctors, the patient did not respond to thetreatment and passed away on 12.06.1998.

10. The complainant in the complaint enumerated the factssuggesting negligence and deficiency of service on the part of theBappellants. The averments made by the complainant and thecorresponding reply by the Doctor is extracted hereinunder:

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BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.ASHA JAISWAL & ORS. [HEMANT GUPTA, J.]

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[2021] 10 S.C.R.

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11. The affidavit of the complainant is on the same lines as theaverments made in the complaint before the Commission.

12. The grievance of the complainant against the appellants canFbe summarized under the following heads:

(a) The Doctor had not examined the patient after surgery; (b)The patient was made to stand in queue for DSA test despitehis critical condition whereafter the machine was found tobe dysfunctional;G

(c) Angiography was performed after 8 hours of discoveringthat blood supply has stopped; (d)The Hospital delayed treatment by 12 hours as no operationtheatre was available;H

(e) The Doctor did not attend the patient and left him in theAcare of inexperienced doctors; (f)Doctor failed to amputate legs on time on account ofgangrene and did not try to treat the gangrene; and (g)The reliance on the principle of res ipsa loquitor to supportthe finding that it is a case of medical negligence.

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13. Learned Commission while analyzing the evidence observedthat the complainant had filed evidence affidavits but the Hospital andthe Doctor, though have filed their written versions, but have not filedevidence by way of affidavits except an affidavit of Dr. Kripalani. Wehowever find at the outset that such primary observation is itselferroneous. The Hospital and the Doctor had filed their written versionby way of affidavit dated 7.1.2000 i.e., the same date on which Dr.Kripalani had filed an affidavit. The Commission has overlooked thefact that written version is by way of an affidavit. Later, the Hospitalhad also filed evidence affidavit on 13.07.2009 whereas the Doctor hadfiled a short affidavit on 30.8.2009 reiterating and confirming thestatements, averments and the contentions raised in the written versionfiled on 7.1.2000. Thus, there is factual error in the order of theCommission.

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14. The Commission had commented adversely against the Doctorthat he had not seen or attended the patient for several days before hisdeparture for his tour to U.S.A and U.K for about a month and had noteven indicated the name of any super specialist in his field who shouldlook after the patient in his absence. The Commission mentioned thatthe Doctor observed at the first instance within a couple of days ofadmission at the Hospital that there was impending gangrene and thatDr. Partha and Dr. Bindra did not take timely decision for amputation oflegs and by the time Dr. Pachore was consulted, it was too late. Moreover,it was also noted that Dr. Pachore had scolded Dr. Partha for the delayin consulting him as even if the amputation was done at such belatedoccasion, nothing could be said about the survival of the patient.

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15. The Commission opined that considering the conditions in India,it is very difficult to secure the presence of an expert doctor to file anaffidavit against another expert doctor and thus it would be a case of resipsa loquitor. It was mentioned that though the Doctor was present atMumbai from 29.4.1998 to 9.5.1998, he did not give advice for amputation H

Aof the legs and thereafter from 9.5.1998 to 7.6.1998, he went to U.S.Aand U.K to attend medical conferences. He had visited the patient onlyon 8.6.1998 after several days of amputation. The Commission reliedupon judgment in Whitehouse v. Jordanand Anr.[6] to apply the principleof res ipsa loquitor. A reference was also made to an article “Repair ofInfraneral Abdominal Aortic Aneurysms (AAAs): Introduction” to sayBthat the mortality associated with repair of AAAs has been greatly reducedby improvements in preoperative evaluation and perioperative care.Another text book by Robert B. Rutherford was referred to notethatparaplegia was a rare complication in the case of Aneurysms whereasin the present matter, paraplegia occurred instantaneously.C16. Learned counsel for the appellants herein argued that theHospital is a renowned hospital having four operation theatres and advancemachines including DSA. Three other hospitals in Mumbai such as JaslokHospital, Hinduja Hospital and Breach Candy Hospital alone had DSAmachines at the relevant time.The Hospital in its affidavit had inter alia

Dmentioned that the DSA test is not a bed side test. The patient has to becarefully shifted to the cardiac cauterization department where the DSAmachine was installed. The patient hence had to be stabilized before hewas shifted to DSA department. Since the patient was put on ventilatorand on several support medications, it was not possible to immediatelyundergo the DSA test. But when the patient was taken for DSA test, theEmachine developed certaintechnical problem. Since the DSA machinewas not working, angiography was thought to be the best possible testand was thus conducted. The Hospital had specialized staffin all branchesof medicine and the medical assistance as was required from time totime including nephrology, orthopedics etc. was provided to the patient.

FIt was argued that the professional competence of Doctor has not beendoubted even by the Commission but two factors have been taken againstthe Doctor for holding him negligent; first, that he did not visit the patientsoon after the surgery till 9/9.30 a.m. on the next day to verify the bloodflow after the surgery, and second, he did not visit the patient from29.4.1998 to 9.5.1998 when he was in Mumbai and from 9.5.1998 toG7.6.1998 when he went abroad for attending medical conferences.

17. We do not find that the basis of finding the Doctor negligent inproviding medical care is sustainable as there are both legal and factualerrors in the findings recorded by the Commission.

6 [1981] 1 Weekly Law Reports 246H

18. Dr. K.G. Deshpande had referred the patient to the Doctor on15.4.1998 with advice of urgent surgical repair of Aneurysum. The patienthad taken another six days to consult Doctor at Mumbai and it was onlyon 21.4.1998 that the patient was examined by the Doctor and wasadvised immediate Aneurysmectomy in view of the impending gangrene.Therefore, gangrene was not found to be impending after few days ofadmission to the Hospital but even before the patient was admitted. Thepatient was in critical condition when the Doctor was consulted on21.4.1998 and surgery was thereafter performed within two days.

19. Further, the non-working of the DSA machine and consequentdelay in performing the test cannot be said to be negligence on the partof the Doctor or the Hospital. The DSA machine is a large, expensiveand complicated machine which unfortunately developed certain technicalproblem at the time when patient had to be tested. Any machine canbecome non-functional because of innumerable factors beyond the humancontrol as the machines involve various mechanical, electrical andelectronic components. The DSA test was conducted in the Hospital on22.4.1998 and hence DSA machine cannot be said to be dysfunctionalfor a long time. The alternative process to determine the blood flow wascarried out by angiography and the decision for re-exploration was takenat 12.30 p.m. No fault can be attached to the Hospital if the operationtheatres were occupied when the patient was taken for surgery. Operationtheatres cannot be presumed to be available at all times. Therefore,non-availability of an emergency operation theatre during the period whensurgeries were being performed on other patients is not a valid ground tohold the Hospital negligent in any manner.

20. The re-exploration of operative notes dated 24.4.1998 showsthat a fresh graft was sutured in place after establishing the flow. Thepatient was then put on ventilator and shifted to recovery room. On25.4.1998, a note by Dr. Bindra indicated that the patient was seen byDr. Shruti. It was noted that there wasno movement in both the legs buthad pin prick sensation and below mid-thigh, sensation was present onthe lower limbs. Further, legs were warm till the ankles and the feetwere cold. On 27.4.1998, Dr. H.S. Bindra had sought consultation fromDr. Khadilkar giving case history that limbs were warm and that thepatient had pain in the lumber region and was also feeling tightness inboth the lower limbs. Dr. Khadilkar noted his impressions that it wasvery likely lower spinal cord/conus syndrome and thereafter advisedMRI of the lower cervical spine and till then to continue with the medicine AB

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Apentosiflin and lomodex and for muscle ischemia – high CK andMyoglobulin. Dr. Khadilkar suggested the same treatment to continueon 28.4.98. On 29.4.1998, Dr. Khadilkar had reported the sensory leveldropped to upper 1/3[rd] of the thigh and that there was no power in limbs.No changes were however seen in the MRI report. It was also reportedthat probably myonecrosis was playing more significant role in theBweakness.The patient was put on dialysis thereafter.

21. The patient was examined by Dr. Kripalani or his unit from1.5.1998 and thereafter formany days till 23.5.1998. The dialysis wasbeing conducted in the meantime as well. The patient was beingmonitored by Dr. Bindra throughout. Subsequently, the patient wasCreferred to Dr. Amarapurkaron 12.5.1998when it was noted that IschemicInjury to liver needed no treatment on 13.5.1998.The patient was thenreferred to Dr. Amin for enternal nuirisim on 16.5.1998.

22. It was further noted on 18.05.1998 from Colour Flow Imagingof limb arteries that both common femoral, superficial femoral andDpopliteal arteries werepatent. The flow in both posterior tibial arterieswas of low velocity and of venous type, suggesting refilled flow. Dr.Pachore also examined the patient on 27.5.1998 and observed that thepatient had wet gangrene below knee and was thus advised amputation.On 29.5.1998, the patient was operated for amputation below the kneeEat the level of tibial tuberosity for treatment of wet gangrene and theBilateral Guillatine Amputation was carried out. On 30.05.1998, it wasnoted that the acute renal failure was improving. Further septicemiawas diagnosed on 30.05.1998. Later, on 12.06.1998, the patient was puton ventilator and he subsequently passed away at 9.30 pm due tosepticemic shock.F

23. It is to be noted that it is not the case of the complainant thatDoctor was not possessed of requisite skill in carrying out the operation.In fact, the patient was referred to him by Dr. Deshpande keeping inview the expertise of the Doctor in vascular surgery. There is no proofthat there was any negligence in performing the surgery on 23.4.1998 orGin the process of re-exploration on 24.4.1998. The allegation is of failureof the Doctor to take the follow-up action after surgery on 23.4.1998, adelayed decision to amputate the leg subsequent to re-exploration on24.4.1998,and the alleged undue foreign visit of the Doctor.

24. In respect to such contention of the Doctor being on a foreignHvisit, it is well known a medical professional has to upgrade himself with

the latest development in his field which may require him to attendconferences held both in and outside the country. Mere fact that theDoctor had gone abroad cannot lead to an inference of medical negligenceas the patient was admitted in a hospital having specialists in multi-faculties. Two doctors from the unit of the Doctor namely Dr. Bindraand Dr. Partha, both post graduates, were present to attend to the patient.Moreover, as per the stand of the Hospital and the Doctor, the patientwas kept in Cardio Vascular Intensive Care Unit after the surgery andwas continuously being monitored by qualified post-graduate doctorsincluding Dr. Nemish Shah, Head of Cardio Vascular Surgery. The patientwas even attended by other specialist doctors as well which is evidentfrom the brief summary of treatment given to the patient. The experts inthe other fields have been consulted from time to time and the treatmentwas modulated accordingly. In spite of the treatment, if the patient hadnot survived, the doctors cannot be blamed as even the doctors with thebest of their abilities cannot prevent the inevitable.

25. The blood was flowing properly soon after the surgery butlater the formation of clot was confirmed after the angiography test wasconducted at 12.30 p.m. An immediate decision was taken for re-exploration at 3.30 p.m. The allegation of delay in treatment after thesurgery seems to be baseless as the patient was being administeredantibiotics like Metrogyl 400 and Piperacillin Injection which are usedfor treatment in gangrene. Dr. Kripalani in his affidavit denied theallegation leveled by the complainant. Dr. Kripalani had treated patientcontinuously including carrying out the dialysis. In respect of the allegationthat doctors failed to amputate legs on time, efforts were being made tosave the limbs as amputation is considered as the last resort. Theamputation was done as per the advice of Dr. Pachore. In the presentera of super-specialization, one doctor is not a solution for all problemsof a patient. Each problem is dealt with by an expert in the concernedfield and that is what is apparent from the medical record. The stand ofthe complainant is that since surgery was performed by a doctor, healone would be responsible for different aspects of the treatment requiredand given to the patient. However, it is an incorrect assumption to bemade.

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Afastened on the doctors as a case of medical negligence. It is too muchto expect from a doctor to remain on the bed side of the patient throughouthis stay in the hospital which was being expected by the complainanthere. A doctor is expected to provide reasonable care which is not provedto be lacking in any manner in the present case.

B27. The sole basis of finding of negligence against the Hospital isof res ipsa loquitor. It is to be noted that res ipsa loquitor is a rule ofevidence. This Court in a judgment reported as Syad Akbar v. State ofKarnataka[7] explained the principle in a criminal trial as under:

“19. As a rule, mere proof that an event has happened or anCaccident has occurred, the cause of which is unknown, is notevidence of negligence. But the peculiar circumstances constitutingthe event or accident, in a particular case, may themselves proclaimin concordant, clear and unambiguous voices the negligence ofsomebody as the cause of the event or accident. It is to suchcases that the maxim res ipsa loquitur may apply, if the cause ofDthe accident is unknown and no reasonable explanation as to thecause is coming forth from the defendant. To emphasise the point,it may be reiterated that in such cases, the event or accident mustbe of a kind which does not happen in the ordinary course ofthings if those who have the management and control use dueEcare. But, according to some decisions, satisfaction of this conditionalone is not sufficient for res ipsa to come into play and it has tobe further satisfied that the event which caused the accident waswithin the defendant’s control. The reason for this secondrequirement is that where the defendant has control of the thingwhich caused the injury, he is in a better position than the plaintiffFto explain how the accident occurred. Instances of such specialkind of accidents which “tell their own story” of being offspringsof negligence, are furnished by cases, such as where a motorvehicle mounts or projects over a pavement and hurts somebodythere or travelling in the vehicle; one car ramming another fromGbehind, or even a head-on collision on the wrong side of the road.(See per Lord Normand in Barkway v. South Wales TransportCo. [(1950) 1 All ER 392, 399] ; Cream v. Smith [(1961) 8 AER349] ;Richley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER 109])

7 (1980) 1 SCC 30H

20. Thus, for the application of the maxim res ipsa loquitur “noless important a requirement is that the res must not only bespeaknegligence, but pin it on the defendant”.

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26. From the above conspectus, two lines of approach in regardto the application and effect of the maxim res ipsa loquitur are discernible.According to the first, where the maxim applies, it operates as an exceptionto the general rule that the burden of proof of the alleged negligence is,in the first instance, on the plaintiff. In this view, if the nature of anaccident is such that the mere happening of it is evidence of negligence,such as, where a motor vehicle without apparent cause leaves thehighway, or overturns or in fair visibility runs into an obstacle; or brushesthe branches of an overhanging tree, resulting in injury, or where there isa duty on the defendant to exercise care, and the circumstances in whichthe injury complained of happened are such that with the exercise of therequisite care no risk would in the ordinary course ensue, the burdenshifts or is in the first instance on the defendant to disprove his liability.Such shifting or casting of the burden on the defendant is on account ofa presumption of law and fact arising against the defendant from theconstituent circumstances of the accident itself, which bespeak negligenceof the defendant. This is the view taken in several decisions of Englishcourts. [For instance, see Burke v. Manchester, Sheffield & LincolnshireRail Co. [(1870) 22 LJ 442] ; Moore v.R. Fox & Sons [(1956) 1 QB 596: (1956) 1 All ER 182] . Also see paras 70, 79 and 80 of Halsbury’sLaws of England, Third Edn., Vol. 28, and the rulings mentioned in thefootnotes thereunder.]

27. According to the other line of approach, res ipsa loquitur isnot a special rule of substantive law; that functionally, it is only an aid inthe evaluation of evidence, “an application of the general method ofinferring one or more facts in issue from circumstances proved inevidence”. In this view, the maxim res ipsa loquitur does not requirethe raising of any presumption of law which must shift the onuson the defendant. It only, when applied appropriately, allows thedrawing of a permissive inference of fact, as distinguished froma mandatory presumption properly so-called, having regard to the totalityof the circumstances and probabilities of the case. Res ipsa is only ameans of estimating logical probability from the circumstances of theaccident. Looked at from this angle, the phrase (as Lord Justice Kennedy A

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Aput it [Russel v. London & South Western Railway Co, (1908) 24 TLR548] ) only means, “that there is, in the circumstances of the particularcase, some evidence which, viewed not as a matter of conjecture, but ofreasonable argument, makes it more probable that there was somenegligence, upon the facts as shown and undisputed, than that theoccurrence took place without negligence .... It means that theBcircumstances are, so to speak, eloquent of the negligence of somebodywho brought about the state of things which is complained of.”

28. Recently, a three Judge Bench in a judgment reported as IffcoTokio General Insurance Company Limited v. Pearl BeveragesLimited[8] approved the aforesaid judgment in a case of medical negligenceCbeing examined by the consumer fora. It was held as under:

“86. Thus, it is used in cases of tort and where the facts withoutanything more clearly and unerringly point to negligence. Theprinciple of res ipsa loquitur, as such, appears to be inapposite,when, what is in question, is whether driver was under the influenceDof alcohol. It may be another matter that though the principle assuch is inapplicable, the manner in which the accident occurredmay along with other circumstances point to the driver being underthe influence of alcohol.”

29. In Martin F. D’Souza v. Mohd. Ishfaq[9], this court observedEthatthe doctor cannot be held liable for medical negligence by applyingthe doctrine of res ipsa loquitur for the reason that a patient has notfavourably responded to a treatment given by a doctor or a surgery hasfailed. There is a tendency to blame the doctor when a patient dies orsuffers some mishap. This is an intolerant conduct of the family membersFto not accept the death in such cases. The increased cases of manhandlingof medical professionals who worked day and night without their comforthas been very well seen in this pandemic. This Court held as under:- “40. Simply because a patient has not favourably responded to atreatment given by a doctor or a surgery has failed, the doctorGcannot be held straightaway liable for medical negligence byapplying the doctrine of res ipsa loquitur. No sensible professionalwould intentionally commit an act or omission which would resultin harm or injury to the patient since the professional reputation of 8 (2021) 7 SCC 704H9 (2009) 3 SCC 1

the professional would be at stake. A single failure may cost himdear in his lapse.

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42. When a patient dies or suffers some mishap, there is a tendencyto blame the doctor for this. Things have gone wrong and,therefore, somebody must be punished for it. However, it is wellknown that even the best professionals, what to say of the averageprofessional, sometimes have failures. A lawyer cannot win everycase in his professional career but surely he cannot be penalisedfor losing a case provided he appeared in it and made hissubmissions.”

30. In case of medical negligence, this Court in a celebratedjudgment reported as Jacob Mathew v. State of Punjab and Anr.[10]held that simple lack of care, an error of judgment or an accident, is nota proof of negligence on the part of a medical professional. The 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 considerationswhich 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 onaccount 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 follows A

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Aa 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, whatBhas 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, whileCassessing 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 shouldDhave been used.

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(4) The test for determining medical negligence as laid downin Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)]E, WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out inpara 19, p. 19 herein.]] 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 inFdetermining 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.”

G31. In another judgment reported as Arun Kumar Manglik v.Chirayu Health and Medicare Private Limited and Anr.[11], this Courtheld that the standard of care as enunciated in Bolam case must evolvein consonance with its subsequent interpretation by English and IndianCourts. The threshold to prove unreasonableness is set with due regard H11 (2019) 7 SCC 401

to the risks associated with medical treatment and the conditions underwhich medical professionals’ function. The Court held as under:

“45. In the practice of medicine, there could be varying approachesto treatment. There can be a genuine difference of opinion.However, while adopting a course of treatment, the medicalprofessional must ensure that it is not unreasonable. The thresholdto prove unreasonableness is set with due regard to the risksassociated with medical treatment and the conditions under whichmedical professionals function. This is to avoid a situation wheredoctors resort to “defensive medicine” to avoid claims ofnegligence, often to the detriment of the patient. Hence, in aspecific case where unreasonableness in professional conduct hasbeen proven with regard to the circumstances of that case, aprofessional cannot escape liability for medical evidence merelyby relying on a body of professional opinion.”

32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[12],this Court held that the Commission ought not to presume that theallegations in the complaint are inviolable truth even though they remainedunsupported by any evidence. This Court heldas under:

“37. We find from a reading of the order of the Commission thatit proceeded on the basis that whatever had been alleged in thecomplaint by the respondent was in fact the inviolable truth eventhough it remained unsupported by any evidence. As alreadyobserved in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC(Cri) 1369] the onus to prove medical negligence lies largely onthe claimant and that this onus can be discharged by leading cogentevidence. A mere averment in a complaint which is denied by theother side can, by no stretch of imagination, be said to be evidenceby which the case of the complainant can be said to be proved. Itis the obligation of the complainant to provide the factaprobanda as well as the facta probantia.”

33. In another judgment reported as Kusum Sharma and Othersv. Batra Hospital and Medical Research Centre and Others[13], acomplaint was filed attributing medical negligence to a doctor whoperformed the surgery but while performing surgery, the tumour was 12 (2009) 7 SCC 13013 (2010) 3 SCC 480

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Afound to be malignant. The patient died later on after prolonged treatmentin different hospitals. This Court held as under:

“47. Medical science has conferred great benefits on mankind,but these benefits are attended by considerable risks. Everysurgical operation is attended by risks. We cannot take the benefitswithout taking risks. Every advancement in technique is alsoattended by risks.

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72. The ratio of Bolam case [(1957) 1 WLR 582 : (1957) 2 AllER 118] is that it is enough for the defendant to show that thestandard of care and the skill attained was that of the ordinarycompetent medical practitioner exercising an ordinary degree ofprofessional skill. The fact that the respondent charged withnegligence acted in accordance with the general and approvedpractice is enough to clear him of the charge. Two things arepertinent to be noted. Firstly, the standard of care, when assessingthe practice as adopted, is judged in the light of knowledge availableat the time (of the incident), and not at the date of trial. Secondly,when the charge of negligence arises out of failure to use someparticular equipment, the charge would fail if the equipment wasnot generally available at that point of time on which it is suggestedas should have been used.

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78. It is a matter of common knowledge that after happening ofsome unfortunate event, there is a marked tendency to look for aFhuman factor to blame for an untoward event, a tendency whichis closely linked with the desire to punish. Things have gone wrongand, therefore, somebody must be found to answer for it. Aprofessional deserves total protection. The Penal Code, 1860 hastaken care to ensure that people who act in good faith should notbe punished. Sections 88, 92 and 370 of the Penal Code giveGadequate protection to the professionals and particularly medicalprofessionals.”

34. Recently, this Court in a judgment reported as Dr. HarishKumar Khurana v. Joginder Singh & Others[14 ]held that hospital and 14 (2021) SCC On line SC 673H

the doctors are required to exercise sufficient care in treating the patientin all circumstances. However, in an unfortunate case, death may occur.It is necessary that sufficient material or medical evidence should beavailable before the adjudicating authority to arrive at the conclusionthat death is due to medical negligence. Every death of a patient cannoton the face of it be considered to be medical negligence. The Court heldas under:

“11. …….. Ordinarily an accident means an unintended andunforeseen injurious occurrence, something that does not occurin the usual course of events or that could not be reasonablyanticipated. The learned counsel has also referred to the decisionin Martin F.D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein itis stated that simply because the patient has not favourablyresponded to a treatment given by doctor or a surgery has failed,the doctor cannot be held straight away liable for medicalnegligence by applying the doctrine of Res Ipsa Loquitor. It isfurther observed therein that sometimes despite best efforts thetreatment of a doctor fails and the same does not mean that thedoctor or the surgeon must be held guilty of medical negligenceunless there is some strong evidence to suggest that the doctor isnegligent.

14. Having noted the decisions relied upon by the learned counselfor the parties, it is clear that in every case where the treatment isnot successful or the patient dies during surgery, it cannot beautomatically assumed that the medical professional was negligent.To indicate negligence there should be material available on recordor else appropriate medical evidence should be tendered. Thenegligence alleged should be so glaring, in which event the principleof res ipsa loquitur could be made applicable and not based onperception. In the instant case, apart from the allegations madeby the claimants before the NCDRC both in the complaint and inthe affidavit filed in the proceedings, there is no other medicalevidence tendered by the complainant to indicate negligence onthe part of the doctors who, on their own behalf had explainedtheir position relating to the medical process in their affidavit toexplain there was no negligence. ………………”

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A35. It may be mentioned here that the complainant had led noevidence of experts to prove the alleged medical negligence except theirown affidavits.The experts could have proved if any of the doctors inthe Hospital providing treatment to the patient were deficient or negligentin service. A perusal of the medical record produced does not show anyomission in the manner of treatment. The experts of different specialitiesBand super-specialities of medicine were available to treat and guidethecourse of treatment of the patient. The doctors are expected to takereasonable care but none of the professionals can assure that the patientwould overcome the surgical procedures. Dr. Kripalani has been attributedto have informed the complainant that the patient’s legs were not workingCbut Dr. Kripalani denied all the averments by filing of an affidavit.

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36. As discussed above, the sole basis of finding the appellantsnegligent was res ipsa loquitor which would not be applicable hereinkeeping in view the treatment record produced by the Hospital and/orthe Doctor. There was never a stage when the patient was leftDunattended. The patient was in a critical condition and if he could notsurvive even after surgery, the blame cannot be passed on to the Hospitaland the Doctor who provided all possible treatment within their meansand capacity. The DSA test was conducted by the Hospital itself on22.4.1998. However, since it became dysfunctional on 24.4.1998 andconsidering the critical condition of the patient, an alternative angiographyEtest was advised and conducted and the re-exploration was thus planned.It is only a matter of chance that all the four operation theatres of theHospital were occupied when the patient was to undergo surgery. Wedo not find that the expectation of the patient to have an emergencyoperation theatre is reasonable as the hospital can provide only as manyFoperation theatres as the patient load warrants. If the operation theatreswere occupied at the time when the operation of the patient wascontemplated, it cannot be said that there is a negligence on the part ofthe Hospital. A team of specialist doctors was available and also haveattended to the patient but unfortunately nature had the last word andthe patient breathed his last. The family may not have coped with theGloss of their loved one, but the Hospital and the Doctor cannot be blamedas they provided the requisite care at all given times. No doctor canassure life to his patient but can only attempt to treat his patient to thebest of his ability which was being done in the present case as well.

37. Therefore, we find that the findings recorded by theHCommission holding the Hospital and the Doctor guilty of medical negligence are not sustainable in law. Consequently, the present appealsare allowed. The order passed by the Commission is set aside and thecomplaint is dismissed.

38. By virtue of an interim order passed by this Court on 8.3.2010,a sum of Rs. 5 lakhs was disbursed to the complainant. The said amountis ordered to be treated as ex gratia payment to the complainant and notto be recovered back by either the Hospital or the Doctor.

Divya Pandey

Appeals allowed.

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