VINOD JAIN versus SANTOKBA DURLABHJI MEMORIAL HOSPITAL & ANR. on 25 February 2019

[2019] 4 S.C.R. 843

VINOD JAIN

v.

SANTOKBA DURLABHJI MEMORIAL HOSPITAL & ANR.

(Civil Appeal No. 2024 of 2019)

FEBRUARY 25, 2019

[L. NAGESWARA RAO AND SANJAY KISHAN KAUL, JJ.]

Consumer Protection Act, 1986: Medical negligence – Claimfor compensation – The wife of the claimant-appellant who wassuffering from various diseases was admitted on 15.10.2011 inrespondent no.1-Hospital and was treated by respondent no.2-Doctor on account of fever and chills and dislodgement of nasalfeed tube – Nasal feed tube was reinserted and various tests weredone which showed infection and her medical treatment commencedwith intravenous administration of injection – As per the medicalreports, the cannula used for treatment stopped working and as thepatient displayed normal vitals, respondent no.2 prescribed afurther antibiotic tablet to be orally administered through the nasaltube – On 18.10.2011, she was discharged from hospital and wasprescribed to continue antibiotic tablet for 5 days post discharge,which was administered to her as per the appellant – On 23.10.2011,she was again admitted in another hospital where she was put onlife support ventilation system and as her condition deterioratedshe was shifted to Fortis Hospital – On 31.10.2011, she died –Claim petition filed by appellant against respondents before StateCommission which directed respondents to pay to the appellantcompensation of Rs.15 lakhs and cost of Rs.51000/- – NationalCommission exonerated the respondents of any medical negligenceopining that at the highest it could be termed as a case of wrongdiagnosis and certainly not one of medical negligence – Held: Theapproach adopted by the National Commission cannot be said tobe faulty, while dealing with the role of the State Commission, whichgranted damages on a premise that respondent No.2-Doctor couldhave pursued an alternative mode of treatment – Such a course ofaction, as a super-appellate medical authority, could not have beenperformed by the State Commission – There was no evidence toshow any unexplained deviation from standard protocol – The

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Adeceased was medically compromised by the reason of her pastillnesses and was admitted to two other hospitals, post her dischargefrom respondent No.1-Hospital – The medical certificate issued forthe cause of death by the Fortis Hospital cited septic shock due tomultiple organ failure as the immediate cause of death, with herdiabetic condition being an antecedent cause, as also the multipleBmalignancies, post chemotherapy and radiotherapy allcontributing to her passing away – There was no fault in thereasoning of the National Commission – Negligence.

Consumer Protection Act, 1986: Medical negligence –A doctor cannot be said to be negligent if he is acting inCaccordance with a practice accepted as proper by a reasonablebody of medical men skilled in that particular art, merely becausethere is a body of such opinion that takes a contrary view – Aliability would only come, if (a) either the person (doctor) did notpossess the requisite skills, which he professed to have possessed;Dor (b) he did not exercise, with reasonable competence in a givencase, the skill which he did possess – It is not necessary for everyprofessional to possess the highest level of expertise in that branchin which he practices – Negligence.

Words and Phrases: Negligence – Meaning of.EDismissing the appeal, the Court HELD: 1.1 A doctor cannot be said to be negligent if he isacting in accordance with a practice accepted as proper by areasonable body of medical men skilled in that particular art,merely because there is a body of such opinion that takes aFcontrary view. A physician would not assure a full recovery inevery case, and the only assurance given, by implication, is thathe possesses the requisite skills in the branch of the profession,and while undertaking the performance of his task, he wouldexercise his skills with reasonable competence. [Paras 9, 10]G[849-B-C, F-G]

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

Bolam v. Friern Hospital Management Committee(1957) 1 WLR 582 : (1957) 2 All ER 118; Hucks v.HCole (1968) 118 New LJ 469 – referred to 1.2 Respondent No.1-Hospital promptly attended to thewife of the appellant. Respondent No.2, physician, once again,attended to her promptly, and started her on antibiotic treatment.The nasal feed tube was re-inserted promptly. However, nextday, the cannula stopped functioning and instead ofre-cannulating the patient, oral administration of the antibioticPolypod was found justified. It was this aspect, which accordingto the appellant, amounted to medical negligence. Theexplanation offered by respondent No.2-Doctor was that he foundthat the drip had been disconnected, on account of all peripheralveins being blocked due to past chemotherapies, and that thedrip had been stopped, the night before itself, at the instance ofthe appellant. Taking into consideration the fact that the patientwas normal, a febrile, well-hydrated and displayed normal vitals,the oral administration of the tablet was prescribed. This,according to the NCDRC was the professional and medicalassessment by respondent No.2-Doctor, arrived at on the basisof a medical condition of the patient, and could not constitutemedical negligence. [Para 13] [852-C-F]

1.3 The appellant has also sought to make out a case thatthe blood culture report required his wife to be kept in thehospital. This was again a judgment best arrived at byrespondent No.2-Doctor, based on her other stable conditions,with only the WBC count being higher, which, as per the views ofthe respondent No.2-Doctor, could be treated by administrationof the antibiotic drug orally, which was prescribed for 5 days, andas per the appellant, was so administered. In the perception ofthe doctor, the increase in lymphocytes in the blood count wasthe result of the patient displaying an improved immune responseto the infection. It was in this context that the NCDRC opinedthat at best, it could be categorised as a possible case of wrongdiagnosis. The approach adopted by the NCDRC cannot be saidto be faulty, while dealing with the role of the State Commission,which granted damages on a premise that respondent No.2-Doctor could have pursued an alternative mode of treatment.Such a course of action, as a super-appellate medical authority,could not have been performed by the State Commission. Therewas no evidence to show any unexplained deviation from A

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Astandard protocol. The deceased was medically compromised bythe reason of her past illnesses. The deceased was admitted totwo other hospitals, post her discharge from respondent No.1-Hospital. The moot point was whether her admittance anddischarge from respondent No.1-Hospital was the sole, or eventhe most likely cause of her death. The death had been causedBby multiplicity of factors. There is no fault in the reasoning of theNCDRC. [Paras 14-16, 18] [853-A-E, G]

Kusum Sharma & Ors. v. Batra Hospital & MedicalResearch Centre & Ors.(2010) 3 SCC 480 : [2010] 2SCR 685 – relied on.

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Case Law Reference

[2010] 2 SCR 685 relied onPara 8[2005] 2 Suppl. SCR 307 relied onPara 10

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2024of 2019.

From the Judgment and Order dated 01.08.2017 of the NationalConsumer Disputes Redressal Commission, New Delhi in First AppealENo. 893 of 2016.

Appellant-in-person.

Abhishek Gupta, Adv. for the Respondents.

The Judgment of the Court was delivered by F

SANJAY KISHAN KAUL, J. 1. Leave granted.

2. The sad demise of the wife of the appellant on 31.10.2011 hasresulted in the legal proceedings being initiated by the appellant on abelief that the cause of her death was medical negligence. The StateConsumer Disputes Redressal Commission, Rajasthan (for short ‘StateGCommission’) found in favour of the appellant vide order dated 11.5.2016,but the said order was upset in appeal in the National ConsumerDisputes Redressal Commission, New Delhi (for short ‘NCDRC’) videorder dated 1.8.2017. We are, thus, faced with the present appeal.

3. Late Mrs. Sudha Jain was the wife of the appellant, who wassuffering from various diseases –oesophageal cancer (past history ofcolon and breast cancer), hypertension and type 2 diabetes. Theoccasion to be admitted to respondent No.1-Hospital and being treatedby respondent No.2-Doctor on 15.10.2011 was chills and fever as alsofor re-insertion of nasal feed tube, stated to be dislodged due to severedysphagia. She was attended to by respondent No.2-Doctor for thechill and fever, and nasal feed tube was inserted on the same day byDr. Anurag Govil, with some allied tests prescribed to be carried out.One of the tests was a Complete Blood Count Report, which found thatthe WBC count was high, indicative of infection. She had also runningtemperature of 104 degrees Fahrenheit, and her medical treatmentcommenced with intravenous administration of injection Magnex of 1.5mg. As per the medical reports, the cannula used for intravenoustreatment stopped functioning and respondent No.2-Doctor prescribeda further antibiotic tablet, Polypod (Cefpodoxime) to be orallyadministered through the nasal tube. The patient was discharged fromrespondent No.1-Hospital on 18.10.2011, at which stage also her WBCcount was high and she was prescribed to continue taking her medicinesfor a period of 5 days post discharge, which apparently wasadministered to her, as per the appellant.

4. The appellant claimed that on 23.10.2011, his wife went intocoma and had to be admitted to a nearby Heart and General Hospital,where she was put on life-support ventilation system. The WBC countof the wife of the appellant had risen even further and the systolic BPwas only 40. Her health continued to deteriorate and she was requiredto be shifted to the Fortis Escorts Hospital, where she finally succumbedto her illness on 31.10.2011.

5. The appellant, after the initial period of mourning, is stated tohave consulted various doctors, including his son, who is stated to be adoctor practicing in USA. It is his belief, on the basis of such discussion,that the respondents were guilty of medical negligence in the manner inwhich medical treatment was administered to his wife and her-subsequent discharge from respondent No.1Hospital. The appellantfiled a complaint with the Medical Council of Rajasthan, a statutorybody constituted under the Rajasthan Medical Act, 1952, but thatendeavour proved to be unsuccessful as no case of medical negligence AB

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Awas found in the given facts of the case, in terms of the order passed on13.7.2012. The process of coming to this conclusion included the-response of respondent No.2Doctor to a panel of eleven doctors, whichscrutinised the complaint and the material placed before the panel, bythe appellant. The further appeal of the appellant, before the MedicalCouncil of India was rejected as time barred on 8.3.2013. The nextBlegal journey of the appellant began by approaching the StateCommission, by filing a consumer complaint. The appellant sought tomake out a case of: (a) inappropriate and ineffective medication; (b)failure to restart the cannula for IV medication; (c) premature dischargeof the deceased despite her condition warranting treatment in the ICU;C(d) oral administration of Polypod antibiotic, despite her criticalcondition, which actually required intravenous administration of themedicine.

6. On the other hand, the stand of the respondents was that whenthe patient was discharged, she was a febrile, her vitals were normalDand she was well-hydrated, with no infection in her chest or urinarytract. She was stated to be clinically stable from 15.10.2011 to 17.10.2011and that is why she was so discharged on 18.10.2011, with propermedical prescriptions for the next 5 days. However, the StateCommission found in favour of the appellant and directed acompensation of Rs.15 lakh and costs of Rs.51,000/- to be paid to theEappellant. Aggrieved by the said order of the State Commission, therespondents preferred an appeal before the NCDRC, which exoneratedthe respondents of any medical negligence vide impugned order dated1.8.2017. It was opined that at the highest, it could be termed as a case of wrong diagnosis and certainly not one of medical negligence.F7. In order to appreciate the opinion of the NCDRC, it would beappropriate to lay down the legal principles which would apply in casesof medical negligence.

8. ‘Negligence’ has been defined in the Halsbury’s Laws ofEngland, 4[th]Edn., Vol. 26 pp.17-18 and extracted in Kusum SharmaG&Ors. v. Batra Hospital & Medical Research Centre &Ors.[1] asunder:

“22. Negligence. – Duties owed to patient. A person who holdshimself out as ready to give medical advice or treatment impliedly 1(2010) 3 SCC 480H

undertakes that he is possessed of skill and knowledge for thepurpose. Such a person, whether he is a registered medicalpractitioner or not, who is consulted by a patient, owes himcertain duties, namely, a duty of care in deciding whether toundertake the case; a duty of care in deciding what treatment togive; and a duty of care in his administration of that treatment. Abreach of any of these duties will support an action for negligenceby the patient”

9. A fundamental aspect, which has to be kept in mind is that adoctor cannot be said to be negligent if he is acting in accordance with apractice accepted as proper by a reasonable body of medical men skilledin that particular art, merely because there is a body of such opinion thattakes a contrary view (Bolamv. Friern Hospital ManagementCommittee[2]). In the same opinion, it was emphasised that the test ofnegligence cannot be the test of the man on the top of a Claphamomnibus. In cases of medical negligence, where a special skill orcompetence is attributed to a doctor, a doctor need not possess thehighest expert skill, at the risk of being found negligent, and it wouldsuffice if he exercises the ordinary skill of an ordinary competent manexercising that particular art. A situation, thus, cannot be countenanced,which would be a disservice to the community at large, by makingdoctors think more of their own safety than of the good of their patients.

10. This Court in another judgment in Jacob Mathew v. State ofPunjab[3] dealt with the law of negligence in respect of professionalsprofessing some special skills. Thus, any individual approaching such askilled person would have a reasonable expectation of a degree of careand caution, but there could be no assurance of the result. A physician,thus, would not assure a full recovery in every case, and the onlyassurance given, by implication, is that he possesses the requisite skillsin the branch of the profession, and while undertaking the performanceof his task, he would exercise his skills with reasonable competence.Thus, a liability would only come, if (a) either the person (doctor) did notpossess the requisite skills, which he professed to have possessed; or(b) he did not exercise, with reasonable competence in a given case, theskill which he did possess. It was held not to be necessary for everyprofessional to possess the highest level of expertise in that branch in 2 (1957) 1 WLR 582 :: (1957) 2 All ER 118

3 (2005) 6 SCC 1

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Awhich he practices. In the said opinion, a reference was, once again,made to the Halsbury’s Laws of England as under:

“To establish liability on that basis it must be shown (1) that thereis a usual and normal practice; (2) that the defendant has notadopted it; and (3) that the course in fact adopted is one noBprofessional man of ordinary skill would have taken had he beenacting with ordinary care.”

11. In Hucks v. Cole[4], Lord Denning speaking for the Courtobserved as under:

“A medical practitioner was not to be held liable simply becauseCthings went wrong from mischance or misadventure or throughan error of judgment in choosing one reasonable course oftreatment in preference of another. A medical practitioner wouldbe liable only where his conduct fell below that of the standardsof a reasonably competent practitioner in his field.”

D12. In para 89 of the judgment in Kusum Sharma &Ors.[5] thetest had been laid down as under:

“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 medicalEnegligence. While deciding whether the medical professional isguilty of medical negligence following well known principles mustbe kept in view:

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

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

III. The medical professional is expected to bring a reasonabledegree of skill and knowledge and must exercise a reasonable 4 (1968) 118 New LJ 469H5 (supra)

degree of care. Neither the very highest nor a very low degreeof care and competence judged in the light of the particularcircumstances of each case is what the law requires.

IV. A medical practitioner would be liable only where his conductfell below that of the standard so far reasonably competentpractitioner in his field.

V. In the realm of diagnosis and treatment there is scope forgenuine 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 forthe patient rather than a procedure involving lesser risk buthigher chances of failure. Just because a professional lookingto the gravity of illness has taken higher element of risk toredeem the patient out of his/her suffering which did not yieldthe desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as heperforms 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 ifthe course of action chosen by him was acceptable to themedical profession.

VIII. It would not be conducive to the efficiency of the medicalprofession if no doctor could administer medicine without ahalter round his neck.

IX. It is our bounden duty and obligation of the civil society toensure that the medical professionals are not unnecessarilyharassed or humiliated so that they can perform theirprofessional duties without fear and apprehension.

X. The medical practitioners at times also have to be savedfrom such a class of complainants who use criminal processas a tool for pressurizing the medical professionals/hospitals A

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particularly private hospitals or clinics for extracting uncalledfor compensation. Such malicious proceedings deserve to bediscarded against the medical practitioners.

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

13. Now turning to the application of the aforesaid principles tothe facts at hand. It is material to note that the respondent No.1-CHospital promptly attended to the wife of the appellant. RespondentNo.2, physician, once again, attended to her promptly, and started her onantibiotic treatment. The nasal feed tube was re-inserted promptly.However, in the early hours on the next day, on 16.10.2011, the cannulastopped functioning and instead of re-cannulating the patient, oraladministration of the antibiotic Polypod was found justified. It is thisDaspect, which according to the appellant, amounts to medical negligence.The explanation offered by respondent No.2-Doctor was that when heattended the patient at 11:00 a.m. on 16.10.2011, he found that the driphad been disconnected, on account of all peripheral veins being blockeddue to past chemotherapies, and that the drip had been stopped, theEnight before itself, at the instance of the appellant. Taking intoconsideration the fact that the patient was normal, a febrile,well-hydrated and displayed normal vitals, the oral administration of thetablet was prescribed. This, according to the NCDRC was theprofessional and medical assessment by respondent No.2-Doctor,arrived at on the basis of a medical condition of the patient, and couldFnot constitute medical negligence.

14. We see no reason to differ from the view expressed by theNCDRC, keeping in mind the test enunciated aforesaid. RespondentNo.2-Doctor, who was expected to bring a reasonable degree of skill,knowledge and care, based on his assessment of the patient, prescribedGoral administration of the antibiotic in that scenario, especially onaccount of the past medical treatments of the wife of the appellant,because of which the veins for administration of IV could not belocated. Her physical condition was found to be one where the oraladministration of the drug was possible.

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15. The appellant has also sought to make out a case that theblood culture report required his wife to be kept in the hospital. This was-again a judgment best arrived at by respondent No.2Doctor, based onher other stable conditions, with only the WBC count being higher, which,as per the views of the respondent No.2-Doctor, could be treated byadministration of the antibiotic drug orally, which was prescribed for 5days, and as per the appellant, was so administered. In the perceptionof the doctor, the increase in lymphocytes in the blood count was theresult of the patient displaying an improved immune response to theinfection. It is in this context that the NCDRC opined that at best, itcould be categorised as a possible case of wrong diagnosis.

16. In our opinion the approach adopted by the NCDRC cannotbe said to be faulty, while dealing with the role of the State Commission,which granted damages on a premise that respondent No.2-Doctor couldhave pursued an alternative mode of treatment. Such a course ofaction, as a super-appellate medical authority, could not have beenperformed by the State Commission. There was no evidence to showany unexplained deviation from standard protocol. It is also relevant tonote that the deceased was medically compromised by the reason of herpast illnesses. The deceased was admitted to two other hospitals, posther discharge from respondent No.1-Hospital. The moot point was whetherher admittance and discharge from respondent No.1-Hospital was thesole, or even the most likely cause of her death. The death had beencaused by a multiplicity of factors. In the end, we may also note that themedical certificate issued for the cause of death by Fortis EscortsHospital cited septic shock due to multiple organ failure as theimmediate cause of death, with her diabetic condition being anantecedent cause, as also the multiple malignancies, post chemotherapyand radiotherapy all contributing to her passing away.

17. We appreciate the pain of the appellant, but then, that by itselfcannot be a cause for awarding damages for the passing away of hiswife. We have sympathy for the appellant, but sympathy cannot trans-late into a legal remedy.

18. We cannot fault the reasoning of the NCDRC. Thus, theresult is that the appeal is dismissed, leaving the parties to bear their owncosts.

Devika Gujral

Appeal dismissed.

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