DR. S. K. JHUNJHUNWALA versus MRS. DHANWANTI KAUR & ANR. on 1 October 2018

868

SUPREME COURT REPORTS

[2018] 12 S.C.R.

DR. S. K. JHUNJHUNWALA

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v.

MRS. DHANWANTI KAUR & ANR.

(Civil Appeal No. 3971 of 2011)

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OCTOBER 01, 2018

[ABHAY MANOHAR SAPRE AND VINEET SARAN, JJ.]

Consumer Protection Act, 1986 – Medical Negligence – Whennot – Appellant performed laparoscopy and thereafter generalsurgery to remove the Gall Bladder of Respondent No.1 –CRespondent No.1 filed complaint alleging negligence by theappellant in performing the surgery and claimed compensation forthe mental suffering and pain suffered by her throughout after thesurgery as a result of various ailments suffered by her post surgery– Respondent No.1 further alleged that she never gave consent forDperforming general surgery of her Gall Bladder rather she hadgiven consent for performing laparoscopy only – Complaintdismissed by State Commission – National Commission awarded Rs.2lakhs to be paid by the appellant to Respondent No.1 on account ofnegligence on his part – Propriety of – Held: Appellant is a qualifiedsenior doctor with experience in the field and possessed the requisiteEknowledge and skill in the subject to perform the surgery of GallBladder – Initially he proceeded to perform the laparoscopy of theGall Bladder but while so performing he noticed some inflammationand swelling on the Gall Bladder and therefore, decided to performthe conventional surgery – There is evidence on record that theFappellant sought consent of Respondent No.1’s husband to performthe substitute operation and only thereafter proceeded to doconventional surgery – Further, in terms of Clause 4 of the ConsentForm, the appellant was entitled to perform the conventional surgeryas a substitute to the former one having noticed some abnormalitiesat the time of performing laparoscopy – Thus, there was no need toGhave another Consent Form to do the conventional surgery – Presentis a clear case of grant of consent to the appellant to perform thesubstituted operation of Gall Bladder of Respondent No.1–Respondent No.1 failed to prove any specific kind of negligence ofthe appellant while performing the operation or/and thereafter –

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Impugned order set aside – Order passed by the State Commissionrestored.Consumer Protection Act, 1986 – Medical Negligence –Factors to be proved – Discussed.

Allowing the appeal, the Court

HELD: 1.1 The appellant is a professionally trained doctorand has acquired the post-graduate degree in the subject (FRCS)from London way back in 1976 and worked there (UK) for sevenyears and earned enough experience in the field of surgery. It isalso not in dispute that since 1976/1977, he has been in the fieldof surgery in India till the date he performed operation ofrespondent No.1 on 08.08.1996. These undisputed facts clearlyprove that the appellant is a qualified senior doctor with anexperience in the field and had also possessed the requisiteknowledge and skill in the subject to perform the surgery of GallBladder. Initially he proceeded to perform the laparoscopy surgeryof the Gall Bladder of respondent No.1 as advised but while soperforming he noticed some inflammation, adhesion and swellingon the Gall Bladder and, therefore, decided to perform theconventional surgery, which he actually did on respondent No.1,to remove the Gall Bladder. [Paras 25-27] [878-C-E]

1.2 Clause 4 of the Consent Form empowers the performingdoctor to perform such additional operation or procedureincluding the administration of a blood transfusion or blood plasmaas they or he may consider substitute necessary or proper in theevent of any emergency or if any anticipated condition isdiscovered during the course of the operation. In terms of clause4 of the Consent Form, the appellant was entitled to perform theconventional surgery as a substitute to the former one havingnoticed some abnormalities at the time of performingLaparoscopy. There was no need to have another Consent Formto do the conventional surgery in the light of authorizationcontained in clause 4 itself because the substitute operation wasof a same organ for which the former one was advised exceptwith a difference of another well known method known in medicalsubject to get rid of the malady. There is an evidence on recordthat the appellant having noticed while performing laparoscopy A

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Athat there was some inflammation, adhesion and swelling on GallBladder, he came out of operation theater and informedrespondent No.1’s husband who was sitting outside the operationtheater about the condition of respondent No.1’s gall bladder andsought his consent to perform the substitute operation. It is onlyafter the consent given by the husband of respondent No.1, theBappellant proceeded to do conventional surgery. There is noreason to disbelieve this fact stated by the appellant in hisevidence. It is a natural conduct and the behavior of any prudentdoctor, who is performing the operation to apprise the attendingpersons of what he noticed in the patient and then go aheadCaccordingly to complete the operation. A clear case of grant ofconsent to the appellant to perform the substituted operation ofGall Bladder of respondent No.1 was, therefore, made out toenable the appellant to perform the conventional surgery, whichhe actually performed. [Paras 30-34, 36] [879-C-G; 880-A-B]

D1.3 Respondent No.1 never raised the objection of“consent issue” to the appellant or/and respondent no.2-Hospitaland it was for the first time in the complaint, she raised this issueand made a foundation to claim compensation from the appellant.Nothing prevented her or her husband to raise the issue ofconsent immediately after performance of the surgery while sheEwas in hospital as an indoor patient and even after discharge thatbeing the natural conduct of any patient. It was, however, notdone. It is not in dispute that respondent no.1 failed to prove anyspecific kind of negligence of the appellant while performing theoperation or/and thereafter. Indeed, even the NationalFCommission held this issue in favour of the appellant.[Paras 39, 40] [880-G, H; 881-E]

1.4 Respondent No.1 failed to prove with the aid of anymedical evidence that the stones, which were noticed in thesecond surgery performed after 11 months, were the same stonesGwhich the appellant failed to remove from the Gall Bladder. Hadit been so, the appellant could be held liable for failure on hispart to remove the stones and allowed them to remain in the GallBladder for such a long time. There was no medical evidenceadduced by respondent No.1 to prove this fact. [Paras 41, 42][881-D-E, H ; 882-A]H

1.5 Respondent No.1 was under legal obligation to prove aspecific kind of negligence on the part of the appellant inperforming the surgery and also was required to prove that anysubsequent ailment which she suffered on her return to homesuch as, jaundice, dysentery, fever, loss of weight etc. weresuffered by her only due to improper performance of conventionalsurgery by the appellant and if the surgery had been successful,she would not have suffered any kind of these ailments. Therehas to be a direct nexus with these two factors to sue a doctor forhis negligence. Suffering of ailment by the patient after surgeryis one thing. It may be due to myriad reasons known in medicaljurisprudence. Whereas suffering of any such ailment as a resultof improper performance of the surgery and that too with thedegree of negligence on the part of Doctor is another thing. Toprove the case of negligence of a doctor, the medical evidence ofexperts in field to prove the latter is required. Simply provingthe former is not sufficient. [Paras 43, 44] [882-B-E]

1.6 Respondent No. 1 was not able to prove that theailments which she suffered after she returned home from theHospital were as a result of faulty surgery performed by theappellant. The impugned order is set aside and that of the orderpassed by the State Commission is restored. [Paras 45, 50]

[882-E-F; 884-C]

Jacob Mathew v. State of Punjab(2005) 6 SCC 1 :[2005] 2 Suppl. SCR 307 – relied on.

Samira Kohli v. Dr. Prabha Manchanda & Anr.(2008) 2 SCC 1 : [2008] 1 SCR 719 – referred to.

Bolam v. Friern Hospital Management Committee[1957] 1 WLR 582 ;Eckersley v. Binnie(1988) 18Con LR 1 ;Hucks v. Cole(1968) 118 New LJ 469 –referred to.

Case Law Reference

[2005] 2 Suppl. SCR 307 relied on[2008] 1 SCR 719 referred to Para 21Para 37

referred to

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ACIVIL APPELLATE JURISDICTION : Civil Appeal No.3971of 2011.

From the Judgment and Order dated 01.09.2009 of the NationalConsumer Dispute Redressal Commission at New Delhi in First AppealNo. 93 of 2004.B

Ateev Kumar Mathur, Gagan Gupta, Advs. for the Appellant.

Sanjay Kumar Ghosh, Mrs. Rupali Samanta Ghosh, Advs. for theRespondents.

The Judgment of the Court was delivered by C

ABHAY MANOHAR SAPRE, J.1. This appeal is directedagainst the final judgment and order dated 01.09.2009 passed by theNational Consumer Disputes Redressal Commission (hereinafter referredto as “the National Commission”), at New Delhi in First Appeal No. 93of 2004 whereby the National Commission allowed the appeal filed byDrespondent No.1 and set aside the order dated 19.01.2004 of the StateCommission, West Bengal, Kolkata in Complaint Case No.698/O/1997.

2. In order to appreciate the issue involved in the appeal, it isnecessary to set out the relevant facts hereinbelow.

3. The appellant was the opposite party No.1 whereas theErespondent No.1 herein was the complainant and respondent No.2 hereinwas the opposite party No.2 in the complaint out of which this appealarises.

4. The appellant is a doctor by profession and is practicing inCalcutta since 1969. He is a qualified Surgeon having expertise, especiallyFin gall bladder surgery. He obtained his MBBS degree from BanarasHindu University in 1968 and thereafter went to England and obtainedFRCS degree in 1976. He then worked for seven years in various hospitalsin England as a Surgeon and returned to India in 1978 and settled inCalcutta. He was a visiting consultant to several Hospitals out of whichone was-Life Line Diagnostic Center and Nursing Home (respondentGNo.2 herein) at Calcutta where he used to perform operations on hispatients.

5. Respondent No.1(complainant)-a lady, who, at the relevanttime, was residing in Calcutta felt pain in her abdomen in June 1996.

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She, therefore, consulted a local doctor but she did not get any relief.Therefore, she consulted Dr. Lakshmi Basu who, on examination, advisedher to get some medical tests done such as X-ray, PA Chest, Ultrasoundof upper abdomen Endoscopy, Blood Tests etc. Respondent No.1, asadvised, carried out these medical tests. On examination of the reportsof respondent No.1, Dr. Basu opined that her Gall Bladder had twocalculi in its lumen and the same could be cured only by operation. Dr.Basu accordingly advised respondent No.1 to undergo laparoscopicsurgery from any good Surgeon and suggested the name of the appellant.

6. Respondent No.1, as advised, consulted Dr. S.K. Jhunjunwala-the appellant herein who, after her examination and also her medicaltest reports, agreed with the advise of Dr. Basu and accordingly advisedrespondent No.1 for undergoing Surgery of her Gall Bladder. The appellantalso advised respondent No.1 to get herself admitted in respondent No.2’sHospital for undergoing Surgery.

7. On 07.08.1996, respondent No.1 got herself admitted inrespondent No.2’s Hospital as an indoor patient. On 08.08.1996 theappellant performed the laparoscopy and after that open surgery andremoved the Gall Bladder of respondent No.1. Respondent No.1 was inthe hospital for about a week or ten days for post-operative care andthereafter she was discharged.

8. In December 1997, respondent No.1 filed a complaint underSection 10 of the Consumer Protection Act, 1986 (for short, “the Act”)against the appellant (opposite party No.1) and respondent No.2 (oppositeparty No.2) claiming compensation for the loss, mental suffering andpain suffered by her throughout after the surgery on account of negligenceof the appellant in performing the surgery of her Gall Bladder on08.08.1996. Respondent No.1, in substance, complained that firstly, shehad never given her consent for performing general Surgery of her GallBladder rather she had given consent for performing laparoscopy Surgeryonly but the appellant performed general surgery of her Gall Bladderwhich resulted in putting several stitches and scars on her body, Secondly,even the surgery performed was not successful inasmuch as respondentNo.1 thereafter suffered for several days with various ailments, such asdysentery, loss of appetite, reduction of weight, jaundice etc., Thirdly, inJune 1997, she was, therefore, required to undergo another Surgery inGanga Ram Hospital, Delhi for removal of stones which had slipped in A

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ACBD. It was alleged that all these ailments were incurred due to thenegligence of the appellant, who did not perform the surgery properlyand rather performed the surgery carelessly leaving behind for respondentNo.1 only mental agony, pain, harassment and money loss and henceshe filed a complaint to claim the reasonable amount of compensationunder various heads as mentioned above.

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9. The appellant filed his reply and denied the allegations madeby respondent No.1 in her complaint. In substance, the appellant statedin his reply that he, after examining respondent No.1, advised her to gofor surgery of Gall Bladder, which may even include removal of GallBladder. It was stated that consent of respondent No.1 for performingCthe laparoscopic cholecystectomy was duly obtained before performingthe surgery. The appellant stated that after starting laparoscopic surgery,he noticed swelling, inflammation and adhesion on her Gall Bladder and,therefore, he came out of the Operation Theater and disclosed thesefacts to respondent No.1’s husband and told him that in such a situation

Dit would not be possible to perform laparoscopic surgery and onlyconventional procedure of surgery is the option to remove the malady.The husband of respondent No.1 agreed for the option suggested by theappellant and the appellant accordingly performed conventional surgery.Respondent No.1 was discharged after spending few days in the Hospitalfor post-operative care. The appellant, therefore, denied any kind ofEnegligence or carelessness or inefficiency on his part in performing thesurgery on respondent No.1 and stated that all kinds of precautions tothe best of his ability and capacity, which were necessary to perform thesurgery were taken by him and by the team of doctors that worked withhim in all such operational cases.F

10. Parties adduced affidavit evidence in support of their respectivecases set up in their pleadings. The State Commission, by order dated19.01.2004, dismissed the complaint filed by respondent No.1 finding nomerit therein. Respondent No.1 felt aggrieved and filed appeal beforethe National Commission.G

11. By impugned order, the National Commission allowed theappeal filed by respondent No.1 in part and awarded a total compensationof Rs.2 lakhs to be paid by the appellant to respondent No.1 on accountof negligence on his part in performing the surgery which gives rise to H

filing of the present appeal by way of special leave in this Court by theappellant-Dr. S.K. Jhunjhnwala(opposite party No.1).

12. The short question, which arises for consideration in this case,is whether the National Commission was justified in allowing respondentNo.1’s appeal and was, therefore, justified in holding the appellant (oppositeparty No.1) negligent in performing the Surgery of Gall Bladder ofrespondent No.1 and, in consequence thereof, was justified in awardingRs.2 lakhs by way of compensation to respondent No.1.

13. Heard Mr. Ateev Kumar Mathur, learned counsel for theappellant and Mrs. Rupali Samanta Ghosh, learned counsel for respondentNo.1.

14. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeal and whilesetting aside the impugned order restore the order of the StateCommission for the following reasons.

15. Before we proceed to examine the facts of this case, it isapposite to take note of legal principle that governs the controversyinvolved in the appeal.

16. The question as to how and by which principle, the Courtshould decide the issue of negligence of a professional doctor and holdhim liable for his medical acts/advise given by him/her to his patientwhich caused him/her some monetary loss, mental and physicalharassment, injury and suffering on account of doctor’s medical advise/treatment (oral or operation) is no longer res integra and settled longback by the series of English decisions as well as the decisions of thisCourt.

17. The classic exposition of law on this subject is first laid downin a decision of Queens Bench in a leading case of Bolam vs. FriernHospital Management Committee [1957]1WLR 582 = (1957) 2 AllER 118 (QBD).

18. McNair J., in his opinion, explained the law in the followingwords:

“Where you get a situation which involves the use of somespecial skill or competence, then the test as to whether A

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Athere has been negligence or not is not the test of the manon the top of a Clapham omnibus, because he has not gotthis special skill. The test is the standard of the ordinaryskilled man exercising and professing to have that specialskill. A man need not possess the highest expert skill …..It is well-established law that it is sufficient if he exercisesBthe ordinary skill of an ordinary competent man exercisingthat particular art”

19. The aforesaid principle of law was reiterated and explainedby Bingham L.J. in his speech in Eckersley vs. Binnie (1988) 18 ConLR 1 in the following words:C

“From these general statements it follows that aprofessional man should command the corpus of knowledgewhich forms part of the professional equipment of theordinary member of his profession. He should not lag behindother ordinary assiduous and intelligent members of hisDprofession in the knowledge of new advances, discoveriesand developments in his field. He should have such anawareness as an ordinarily competent practitioner wouldhave of the deficiencies in his knowledge and the limitationson his skill. He should be alert to the hazards and risks inEany professional task he undertakes to the extent that otherordinarily competent members of the profession would bealert. He must bring to any professional task he undertakesno less expertise, skill and care than other ordinarilycompetent members of his profession would bring, but needbring no more. The standard is that of the reasonableFaverage. The law does not require of a professional manthat he be a paragon combining the qualities of polymathand prophet.”

20. All along and till date, the law laid down in Bolam’s case(supra) is consistently followed by all the Courts all over the WorldGincluding Indian Courts as laying down the correct principle of law onthe subject. It is known as Bolam Test.

21. So far as this Court is concerned, a Three Judge Bench in thecase of Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1] examinedthis issue. Chief Justice R.C. Lahoti, (as he then was) speaking for theH

Bench extensively referred to the law laid down in Bolam’s case (supra)and in Eckersley’s case (supra) and placing reliance on these twodecisions observed in his distinctive style of writing that the classicalstatement of law in Bolam’s case (supra) has been widely accepted asdecisive of the standard of care required by both of professional mengenerally and medical practitioner in particular and it is invariably citedwith approval before the Courts in India and applied as a touchstone totest the pleas of medical negligence.

22. It was held that a Physician would not assure the patient offull recovery in every case. A surgeon cannot and does not guaranteethat the result of surgery would invariably be beneficial, much less to theextent of 100 % for the person operated on. The only assurance whichsuch a professional can give or can be understood to have given byimplication is that he is possessed of the requisite skill in that branch ofprofession which he is practicing and while undertaking the performanceof the task entrusted to him he would be exercising his skill withreasonable competence. This is what the entire person approaching theprofessional can expect. Judged by this standard, a professional may beheld liable for negligence on one of two findings: either he was notpossessed of the requisite skill which he professed to have possessed,or, he did not exercise, with reasonable competence in the given case,the skill which he did possess.

23. It was further observed that the fact that a defendant chargedwith negligence acted in accord with the general and approved practiceis enough to clear him of the charge. It was held that the standard ofcare, when assessing the practice as adopted, is judged in the light ofknowledge available at the time of the incident and not at the date oftrial. It was held that the standard to be applied for judging whether theperson charged has been negligent or not would be that of an ordinarycompetent person exercising ordinary skill in that profession. It is notpossible for every professional to possess the highest level of expertiseor skills in that branch which he practices. His Lordship quoted withapproval the subtle observations of Lord Denning made in Hucks vs.Cole (1968) 118 New LJ 469, namely, “a medical practitioner wasnot be held liable simply because things went wrong from mischanceor misadventure or through an error of judgment in choosing onereasonable course of treatment in preference of another. A medicalpractitioner would be held liable only where his conduct fell below A

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Athat of the standards of a reasonably competent practitioner in hisfield.”

24. In our view, the facts of the case at hand has to be examinedin the light of the aforesaid principle of law with a view to find out as towhether the appellant-a doctor by profession and who treated respondentBNo.1 and performed surgery on her could be held negligent in performingthe general surgery of her Gall Bladder on 08.08.1996.

25. It is not in dispute that the appellant is a professionally traineddoctor and has acquired the post-graduate degree in the subject (FRCS)from London way back in 1976 and worked there (UK) for seven yearsCand earned enough experience in the field of surgery. It is also not indispute that since 1976/1977, he has been in the field of surgery in Indiatill the date he performed operation of respondent No.1 on 08.08.1996.

26. These undisputed facts, in our opinion, clearly prove that theappellant is a qualified senior doctor with an experience in the field andDhad also possessed the requisite knowledge and skill in the subject toperform the surgery of Gall Bladder.

27. It is also not in dispute that initially he proceeded to performthe laparoscopy surgery of the Gall Bladder of respondent No.1 as advisedbut while so performing he noticed some inflammation, adhesion andEswelling on the Gall Bladder and, therefore, decided to perform theconventional surgery, which he actually did on respondent No.1, to removethe Gall Bladder.

28. According to respondent No.1, the appellant could not havedone so because she had not given her consent to him to perform thisFsurgery on her. In other words, according to respondent No.1, she hadgiven her express consent in writing to perform only “laparoscopysurgery” but the appellant instead of performing “laparoscopy surgery”proceeded to perform conventional surgery and in that process removedher Gall Bladder. It is due to this reason, according to respondent No.1,a clear case of negligence on the part of the appellant is made out whichGentitles respondent No.1 to claim compensation in terms of money.

29. The State Commission did not accept the aforementionedsubmission of respondent No.1 but this submission found favour to theNational Commission for holding the appellant guilty of negligence in H

performance of his duty in performing the surgery. We do not agreewith the reasoning of the National Commission on this issue for morethan one reason mentioned below.

30. First, clause 4 of the Consent Form dated 07.08.1996 at page282 of the SLP paper book, which is duly signed by respondent No.1, inclear terms, empowers the performing doctor to perform such additionaloperation or procedure including the administration of a blood transfusionor blood plasma as they or he may consider substitute necessary orproper in the event of any emergency or if any anticipated condition isdiscovered during the course of the operation.

31. Second, in terms of clause 4 of the Consent Form, the appellantwas entitled to perform the conventional surgery as a substitute to theformer one having noticed some abnormalities at the time of performingLaparoscopy that it would not be possible for the team of doctorsattending respondent No.1 to continue further with laparoscopy of theGall Bladder.

32. In other words, we are of the view that there was no need tohave another Consent Form to do the conventional surgery in the light ofauthorization contained in clause 4 itself because the substitute operationwas of a same organ for which the former one was advised except witha difference of another well known method known in medical subject toget rid of the malady.

33. Third, there is an evidence on record and we are inclined toaccept the evidence that the appellant having noticed while performinglaparoscopy that there was some inflammation, adhesion and swellingon Gall Bladder, he came out of operation theater and informed respondentNo.1’s husband who was sitting outside the operation theater about whatthe condition of respondent No.1’s gall bladder and sought his consent toperform the substitute operation. It is only after the consent given by thehusband of respondent No.1, the appellant proceeded to do conventionalsurgery.

34. In our opinion, there is no reason to disbelieve this fact statedby the appellant in his evidence. It is, in our opinion, a natural conductand the behavior of any prudent doctor, who is performing the operationto apprise the attending persons of what he noticed in the patient andthen go ahead accordingly to complete the operation.

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A35. It is not the case of respondent No.1 that her husband wasneither present in the hospital on that day nor he was not sitting outsidethe Operation Theater and nor he ever met the appellant on that day.

36. In our opinion, a clear case of grant of consent to the appellantto perform the substituted operation of Gall Bladder of respondent No.1Bwas, therefore, made out to enable the appellant to perform theconventional surgery, which he actually performed.

37. The National Commission while recording the finding on theissue of consent against the appellant relied upon the decision of thisCourt in the case of Samira Kohli vs. Dr. Prabha Manchanda & Anr.C(2008) 2 SCC 1. In our view, the said decision itself has made an exceptionto the cases observing in para 49 of the judgment which reads as under:

“The only exception to this rule is where the additionalprocedure though unauthorised, is necessary in order tosave the life or preserve the health of the patient and itDwould be unreasonable to delay such unauthorisedprocedure until patient regains consciousness and takes adecision.”

38. In our opinion, the case of the appellant also falls in the exceptedcategory mentioned by this Court because the appellant having noticedEthe abnormalities in the Gall Bladder while performing laparoscopysurgery proceeded to perform the conventional surgery and that tooafter obtaining fresh consent of respondent No.1’s husband. In otherwords, it was not an unauthorized act of the appellant and he couldlegally perform on the basis of original consent (clause 4) of respondentNo.1 as also on the basis of the further consent given by the respondentFNo.1’s husband.

39. That apart, we also find that respondent No.1 never raisedthe objection of “consent issue” to the appellant or/and opposite partyrespondent No.2 - Hospital and it was for the first time in the complaint,she raised this issue and made a foundation to claim compensation fromGthe appellant. Nothing prevented her or her husband to raise the issue ofconsent immediately after performance the surgery while she was inhospital as an indoor patient and even after discharge that being thenatural conduct of any patient. It was, however, not done.

DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR[ABHAY MANOHAR SAPRE, J.]

40. It is not in dispute that respondent No.1 failed to prove anyspecific kind of negligence of the appellant while performing the operationor/and thereafter. Indeed, even the National Commission in Para 18held this issue in favour of the appellant in following words:

“18. Yet another grievance of the complainant is that shewas not treated with care during her hospitalization from07.08.96 to 18.08.96. No specific instances which can amountto carelessness or negligence on the part of the surgeonor the nursing home have been brought on record and,therefore, we are unable to hold that there was any lack ofcare amounting to negligence during her stay in the nursinghome for which either the surgeon or nursing home can bemade liable.”

41. Likewise the National Commission further held in favour ofthe appellant in para 19 that the stones, which were removed in thesecond operation at Ganga Ram Hospital after 11 months (04.06.1997)were the same which were noticed by the appellant while performingthe first surgery on 08.08.1996 and remained inside. In other words,respondent No.1 failed to prove with the aid of any medical evidencethat the stones, which were noticed in the second surgery performedafter 11 months, were the same stones which the appellant failed toremove from the Gall Bladder. It is apposite to note the finding of theNational Commission in para 19 hereinbelow.

“………We have already found that from the material placedon record that it is not possible to hold with certainty thatany of the calculi which were removed from the bile duct ofthe complainant at Sir Ganga Ram Hospital was the samefor which she had undergone Cholecystectomy at the handsof the surgeon and, therefore, the only lapse which we canfind on the part of the surgeon is that he did not care tobestow the kind of attention which the problem ofcomplainant required when she consulted him after theprocedure of Cholecystectomy, more particularly duringApril-May 1997……….”

42. Had it been so, the appellant could be held liable for failure onhis part to remove the stones and allowed them to remain in the Gall A

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ABladder for such a long time. There was no medical evidence adducedby respondent No.1 to prove this fact.

43. In our opinion, no medical evidence of any expert was adducedby respondent No.1 to prove any specific kind of negligence on the partof the appellant in performing the surgery (conventional surgery) of GallBBladder except raising the issue of “non-giving of express consent”.This issue we have already dealt with above and found no merit therein.In our view, respondent No.1 was under legal obligation to prove a specifickind of negligence on the part of the appellant in performing the surgeryand also was required to prove that any subsequent ailment which shesuffered on her return to home such as, jaundice, dysentery, fever, lossCof weight etc. were suffered by her only due to improper performanceof conventional surgery by the appellant and if the surgery had beensuccessful, she would not have suffered any kind of these ailments.

44. In our opinion, there has to be a direct nexus with these twofactors to sue a doctor for his negligence. Suffering of ailment by theDpatient after surgery is one thing. It may be due to myriad reasonsknown in medical jurisprudence. Whereas suffering of any such ailmentas a result of improper performance of the surgery and that too with thedegree of negligence on the part of Doctor is another thing. To provethe case of negligence of a doctor, the medical evidence of experts inEfield to prove the latter is required. Simply proving the former is notsufficient.

45. In our considered opinion, respondent No. 1 was not able toprove that the ailments which she suffered after she returned homefrom the Hospital on 08.08.1996 were as a result of faulty surgeryFperformed by the appellant.

46. Learned counsel for respondent No.1 (complainant) vehementlyargued that respondent No.1 suffered immensely due to the surgeryperformed by the appellant and that she was rightly, therefore, awardedthe compensation by the National Commission.

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47. Learned counsel for respondent No.1 also placed reliance onthe Discharge Certificate which, according to her, mentions thatLaparoscopy surgery was performed on respondent No.1. On this basis,learned counsel contended that respondent No.1 had not given herconsent for performing general surgery.

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DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR[ABHAY MANOHAR SAPRE, J.]

48. In the light of the detailed discussion made above on the issuesarising in the case including the issue of grant of consent, we are unableto accept the aforesaid submissions of learned counsel for respondentNo.1.

49. It is apt to remember the words of the then Chief Justice ofIndia when he said in Jacob Mathew’s case (supra) which reads asunder:

“The subject of negligence in the context of medicalprofession necessarily calls for treatment with a difference.There is a marked tendency to look for a human actor toblame for an untoward event, a tendency that is closelylinked with a desire to punish. Things have gone wrongand therefore somebody must be found to answer for it. Anempirical study reveals that background to a mishap isfrequently far more complex than may generally beassumed. It can be demonstrated that actual blame for theoutcome has to be attributed with great caution. For amedical accident or failure, the responsibility may lie withthe medical practitioner, and equally it may not. Theinadequacies of the system, the specific circumstances ofthe case, the nature of human psychology itself and sheerchance may have combined to produce a result in whichthe doctor’s contribution is either relatively or completelyblameless. The human body and its working is nothing lessthan a highly complex machine. Coupled with thecomplexities of medical science, the scope formisimpressions, misgivings and misplaced allegationsagainst eh operator i.e. the doctor, cannot be ruled out.One may have notions of best or ideal practice which aredifferent from the reality of how medical practice is carriedon or how the doctor functions in real life. The factors ofpressing need and limited resources cannot be ruled outfrom consideration. Dealing with a case of medicalnegligence needs a deeper understanding of the practicalside of medicine. The purpose of holding a professionalliable for his act or omission, if negligent, is to make lifesafer and to eliminate the possibility of recurrence of A

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884SUPREME COURT REPORTS

Anegligence in future. The human body and medical science,both are too complex to be easily understood. To hold infavour of existence of negligence, associated with the actionor inaction of a medical professional, requires an in-depthunderstanding of the working of a professional as also thenature of the job and of errors committed by chance, whichBdo not necessarily involve the element of culpability.”

50. In the light of what we have held above, we cannot concurwith the reasoning and the conclusion arrived at by the NationalCommission. As a consequence, the appeal succeeds and is accordinglyallowed. The impugned order is set aside and that of the order passed byCthe State Commission is restored.

Divya Pandey

Appeal allowed.

D

E

F

G

H