ARUN KUMAR MANGLIK versus CHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR. on 9 January 2019

[2019] 3 S.C.R. 281

ARUN KUMAR MANGLIK

v.

CHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR.

(Civil Appeal Nos. 227-228 of 2019)

JANUARY 09, 2019

[DR. DHANANJAYA Y. CHANDRACHUD ANDHEMANT GUPTA, JJ.]

Negligence:

Medical Negligence – Complaint before Medical Council ofIndia – Alleging medical negligence leading to death of the wife ofthe complainant – Medical Council found that treatment given wasnot timely and the Director of the Hospital and the other doctor,both were guilty of professional misconduct – The Council issued awarning to the doctors directing them to be more careful in future –Complaint before State Consumer Disputes Redressal Commission(SCDRC) seeking compensation of Rs. 48 lakhs – SCDRC held thatmedical negligence was established and awarded compensation ofRs.6 lakhs with interest @ 9% – National Consumer DisputesRedressal Commission (NCDRC) reversing the finding of SCDRC,rejected the claim of the complainant – On appeal, held: The medicaltreatment provided in the present case was not in accordance withWHO Guidelines as well as Guidelines prescribed by the Directorateof National Vector Borne Diseases Control Programme – Thus, therespondent-hospital failed to satisfy the standard of reasonable careas laid down in the *Bolamcase – NCDRC without any cogentreason, reversed the findings of fact reached by SCDRC – However,since the Director of the hospital was not a treating doctor nor thereferring doctor, hence cannot be held personally liable for medicalnegligence – The respondent-hospital is held liable for medicalnegligence – The compensation granted by SCDRC is alsoinadequate and hence it is enhanced to Rs. 15 lakhs with interest@ 9% – Consumer Protection Act, 1986.

Medical Negligence – Ascertainment of – Held: A medicalpractitioner would be liable for medical negligence only where theconduct falls below the standards of a reasonably competentpractitioner in the field – While adopting standard of care, Indian

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Acourts must be conscious of the fact that a large number of hospitalsand medical units in the country, do not have access to latesttechnology and medical equipment – The threshold to proveunreasonableness is set with due regard to the risks associated withmedical treatment and the conditions under which medicalprofessionals function – Where unreasonableness in professionalBconduct has been proved, a professional cannot escape liabilityfor medical evidence merely by relying on a body of professionalopinion.

Compensation:

CCompensation for the death of home-maker spouse who isnot employed – Held: Contribution made by a non-working spouseto the welfare of the family has an economic equivalence – Therefore,for computing compensation payable for the death of a home-maker,the Court must bear in mind that the contribution is significant andcapable of being measured in monetary terms.D

Allowing the appeals, the Court

HELD: 1.1 The standard of care which is expected of amedical professional is the treatment which is expected of onewith a reasonable degree of skill and knowledge. A medicalEpractitioner would be liable only where the conduct falls belowthe standards of a reasonably competent practitioner in the field.[Para 29] [296-G]

Kusum Sharma v Batra Hospital and Medical ResearchCentre (2010) 3 SCC 480 : [2010] 2 SCR 685– relied on.F

1.2 Medical negligence jurisprudence in India ischaracterized by a reliance on the *‘Bolam test’. The *‘Bolamtest’ has been the subject of academic debate and evaluation inIndia and other jurisdictions. Among scholars, the *‘Bolam test’has been criticized on the ground that it fails to make theGdistinction between the ordinary skilled doctor and the reasonablycompetent doctor. The former places emphasis on the standardsadopted by the profession, while the latter denotes thatnegligence is concerned with departures from what ought to have H

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been done in the circumstances and may be measured byreference to the hypothetical “reasonable doctor”. The Courtmust determine what the reasonable doctor would have done andnot the profession. Law must take into account advances inmedical science and ensure that a patient-centric approach isadopted. The standard of care as enunciated in the *Bolam casemust evolve in consonance with its subsequent interpretation byEnglish and Indian Courts. Significantly, the standard adopted bythe three-judge bench of this Court in **Jacob Matthew caseincludes the requirement that the course adopted by the medicalprofessional be consistent with “general and approved practice”and the Court is bound by this decision. [Paras 30, 36 and 41][296-H; 302-D-E; 306-C-D]

Dr Laxman Balkrishna Joshi v. Dr Trimbak BapuGodbole AIR 1969 SC 128 : [1969] 1 SCR 206 ;**Jacob Mathew v. State of Punjab(2005) 6 SCC 1 :

[2005] 2 Suppl. SCR 307 ;Indian Medical Association

v. V P Shantha (1995) 6 SCC 651 : [1995] 5 Suppl.SCR 110 ;State of Punjab v. Shiv Ram (2005) 7SCC 1 : [2005] 2 Suppl. SCR 991 ;Nizam’s Institute ofMedical Sciences v. Prasanth S Dhananka(2009) 6SCC 1 : [2009] 9 SCR 313 – relied on.

V Kishan Rao v. Nikhil Super Speciality Hospital(2010) 5 SCC 513 : [2010] 5 SCR 1 – referred to.

*Bolam v. Friern Hospital Management Committee–[1957] 1 WLR 582 Maynard v. West MidlandsRegional Health Authority[1985] 1 All ER 635 ;Hucks v. Cole(1968) 118 New LJ 469 ;Bolitho v. Cityand Hackney Health Authority(1996) 4 All ER 771 –referred to.

Medical Negligence, Sweet and Maxwell, Fifth Edition(2017) by Michael Jones – referred to.

1.3 In adopting a standard of care, Indian courts must beconscious of the fact that a large number of hospitals and medicalunits in the country, especially in rural areas, do not have accessto latest technology and medical equipment. [Para 42] [306-E]

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[2019] 3 S.C.R.

AMartin F D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 :[2009] 3 SCR 273 – relied on.

1.4 In the practice of medicine, there could be varyingapproaches to treatment. There can be a genuine difference ofopinion. However, while adopting a course of treatment, theBmedical professional must ensure that it is not unreasonable. Thethreshold to prove unreasonableness is set with due regard tothe risks associated with medical treatment and the conditionsunder which medical professionals function. This is to avoid asituation where doctors resort to ‘defensive medicine’ to avoidclaims of negligence, often to the detriment of the patient. Hence,C

in a specific case where unreasonableness in professional conducthas been proven with regard to the circumstances of that case, aprofessional cannot escape liability for medical evidence merelyby relying on a body of professional opinion. [Para 43] [306-G-H;307-A]

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1.5 In the present case, the record which stares in the faceof the adjudicating authority establishes that between 7.30 amand 7 pm, the critical parameters of the patient were not evaluated.The simple expedient of monitoring blood parameters was notundergone. This was in contravention of WHO guidelines as wellEas the guidelines prescribed by the Directorate of National VectorBorne Diseases Control Programme. In failing to provide medicaltreatment in accordance with medical guidelines, the respondentsfailed to satisfy the standard of reasonable care as laid down inthe Bolam case and adopted by Indian Courts. To say that thepatient or her family would have resisted a blood test, is merelyFa conjecture. Since no test was done, such an explanation cannot be accepted. [Para 44] [307-B-D]

be accepted. [Para 44] [307-B-D]

1.6 The NCDRC had before it a well-considered judgmentof the SCDRC based on the evidence on the record. While thejurisdiction of an adjudicatory authority in a first appeal is co-Gextensive with that of the original authority, the NCDRC hasdisplaced the findings of fact which have been arrived at by theSCDRC without any cogent reasoning. There was no basis orjustification to reverse the finding of medical negligence whichwas arrived at by the SCDRC. [Para 45 and 47] [307-E, G]

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2. However, there is no basis for recording a finding ofmedical negligence against the Director of the hospital. TheDirector of the hospital was not the treating doctor or the referringdoctor. Hence, while the finding of medical negligence againstthe hospital would stand confirmed, the second respondent wouldnot be personally liable. [Para 48] [308-A]

3.1 Finding the hospital and its Director guilty of medicalnegligence, the SCDRC directed compensation in the amount ofRs. 6 lakhs together with interest at 9 per cent. While quantifyingthe compensation, the SCDRC was in error in holding that sincethe son and daughter of the appellant are “highly educated andworking” and had not joined as complainants, the complainanthimself would be entitled to receive compensation only in theamount of Rs. 6 lakhs. The complainant has lost his spouse, whowas 56 years of age. Though she was not employed, contributionmade by a non-working spouse to the welfare of the family has aneconomic equivalence. Thus, in computing compensation payableon the death of a home-maker spouse who is not employed, theCourt must bear in mind that the contribution is significant andcapable of being measured in monetary terms. [Paras 49, 50, 51and 53] [308-B-D; 309-B]

3.2 The interests of justice would be met, if the amount ofcompensation is enhanced. Accordingly, it is directed that theappellant shall be entitled to receive an amount of Rs. 15 lakhsby way of compensation from the first respondent. Thecompensation, as awarded, shall carry interest at the rate of 9per cent per annum from the date of the institution of the complaintbefore the SCDRC until payment or realisation.[Paras 55 and 56] [309-C, D]

Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 :[2001] 1 Suppl. SCR 578 ;Malay Kumar Ganguly v.Sukumar Mukherjee (2009) 3 SCC 663 ;NationalInsurance Company Ltd. v Pranay Sethi 2017 (13)SCALE 12 – relied on.

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[2019] 3 S.C.R.

From the Judgment and Order dated 25.02.2016 of the NCDRCFCircuit Bench, Bhopal in F.A. No.438 of 2015 and Order dated 05.04.2016in Review Application No.78 of 2016

WITH

Civil Appeal No. 229 of 2019.GBrijender Chahar, Sr. Adv., Birendra Kumar Mishra, ShashiBhushan, Ms. Poonam Atey, Advs. for the Appellant.

Ankur Mittal, U.C. Mittal, Ms.Nidhi Mittal, Advs. for theRespondents.

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The Judgment of the Court was delivered by DR. DHANANJAYA Y. CHANDRACHUD, J.

1. Delay condoned.

2. Leave granted.

3. The National Consumer Disputes Redressal Commission[NCDRC][1] has set aside an order of the MP State Consumer DisputesRedressal Commission[2] holding the respondents guilty of medicalnegligence in the treatment of the spouse of the appellant which eventuallyled to her death on 15 November 2009. In consequence, the award ofcompensation of Rs. 6,00,000 awarded, together with interest, has beenreversed.

4. The spouse of the appellant, Madhu Manglik, was about 56years of age, when on 14 November, 2009, she was diagnosed withdengue fever. The report of the pathological laboratory, Glaze Pathology,reported the following state of health:

“RBC- 4.21 Million/cmm

Hb-12,1 gm/d/ TLC-1900/Cmm

Platelet Count 1.79 lakh/cmm

Dengue Ns 1 Antigen - Positive”

The patient was admitted to Chirayu Health & Medicare hospitalat Bhopal at about 7 am on 15 November 2009. She was immediatelyadmitted to the Intensive Care Unit. Though she was afebrile, she reportedaccompanying signs of dengue fever including headache, body ache anda general sense of restlessness. The patient had a prior medical historywhich included catheter ablation and paroxysmal supra ventriculartachycardia suggestive of cardiac complications.

5. Upon admission at about 7.30 am, basic investigations werecarried out. The blood report, together with the accompanying clinicalexamination indicated the following position:

“Hb 13.4TLC 3000/Cumm,Platelet count 97000/cumim,PS for MP no malarial parasite seenBlood urea 21 mg%Serum bilirubin img%1 NCDRC

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[2019] 3 S.C.R.

ASGPT 521 U/L,SGOT 105Mg/dlELECTROLYTE Sodium 140 meq/LPotasium 4.0 meq/L Ex R4Urine test normal Ex R610.00 am – Pulse-88/min,BBp. 130/88 mm Hg Temp. A febrile c/o Pain in abdomen At 2.00 pm – p-128/min, mildly febrileBP – 110/70 mm Hg”

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Since the patient was complaining of abdominal discomfort, anultrasonography of the abdomen was carried out.

6. By 6 pm, on the date of admission the patient was sinking, herblood pressure was non-recordable, extremities were cold and the pulsewas non-palpable. In the meantime, the patient was placed on a regimeDof administering intravenous fluids. The administration of 2500ml of fluidswas planned over the course of 24 hours. Between 7 am and 6 pm, shewas administered about 1200 ml of fluids. The patient developedbradycardia and cardiac arrest. Faced with this situation, the treatingdoctors administered about 1.5 litres of extra fluids. Fluids and colloidsEwere administered for increasing the blood pressure.

7. Since the blood pressure of the patient did not improve, shewas administered ionotropes (dopamine & non adrenaline). At 6.45 pm,the patient suffered a cardiac arrest. Her cardiac levels were monitored.At 6.55 pm she was examined by Dr C C Chaubey.F

8. Belatedly, at 7.15 pm, another blood sample was taken, whichindicated the following results:- “Hb – 8.1/d/TLC-7,400/CummPlatelet count 19000/cmm Ex R 10GTotal protein- 3.9 gms%A/G Ratio – 2SGOT 169 IU/L”

9. At 8 pm, the patient had a cardiac arrest. She was declareddead at 8.50 pm.

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10. A complaint of medical negligence was instituted before theMedical Council of India.

11. The Ethics Committee of the Medical Council of India cameto the conclusion on 20 February 2015 that though the treating doctorshad administered treatment to the patient in accordance with theestablished medical guidelines, the treatment was not timely. The EthicsCommittee, prima facie, found that there was professional misconducton the part of both the Director of the Hospital Dr Ajay Goenka(respondent No. 2) and Dr Abhay Tyagi. The Ethics Committee observedthus:

“…..After perusing the statements given by both the parties anddocuments on record in the case, the Ethics Committee discussedthe matter in detailed and noted that the patient admitted inChirayu Health & Medicare Pvt. Ltd., Malipura, Bhopalon the advice of Dr. A. Goenka but he never visited inhospital to see the patient. The committee further notedthat treatment administered to the deceased in the hospitalwas correct as per the medical guidelines but not giventimely. Although, Dr. Goenka did not went (sic)to hospital tosee the patient as the patient admitted there as per his assuranceand advice, therefore, the Ethics committee prima facie foundthat there is a professional misconduct on the part of both thedoctors and decided to issue a warning to Dr. A. Goenka andDr. Abhay Tyagi with the directions to be more careful in futurewhile treating such type of patients/cases”

12. This recommendation was accepted by the ExecutiveCommittee of the Medical Council. The appellate order of the MedicalCouncil was communicated on 15 July 2015.

13. The appellant instituted a complaint before the SCDRC seekingan award of compensation in the amount of Rs. 48 lakhs on the groundthat his spouse suffered an untimely death due to the medical negligenceof the treating doctors at the hospital.

14. By its judgment dated 27 April 2015, the SCDRC came to theconclusion that a case of medical negligence was established. An amountof Rs. 6 lakhs was awarded to the appellant by way of compensation,together with interest at the rate of 9 per cent per annum.

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[2019] 3 S.C.R.

A15. In appeal, these findings have been reversed by the NCDRCand in consequence, the claim stands dismissed.

16. Assailing the decision of the NCDRC, learned counselappearing on behalf of the appellant submits that:

(i) The patient was admitted to the hospital on 15 November 2009Bwith a reported case of dengue, though in a stable condition;

(ii) The hospital and the treating doctors failed to follow theestablished protocol in treating a case of dengue;

(iii) The line of treatment was contrary to established guidelines,Cformulated by the World Health Organisation, titled “DengueGuidelines for Diagnosis, Treatment, Prevention and Control”;

(iv) Except for the blood sample which was taken at about 7.30am, no further effort was made to determine the hematocritlevels (HCT) during the course of the day and it was onlyDwhen the patient suffered a cardiac arrest after 6 pm thatblood investigations were done at about 7.15 pm;

(v) The trajectory of the illness indicated that the platelet levelswhich stood at 1,79,000 on 14 November 2009 had recorded asteep decline and stood at 97,000 on 15 January 2009 whenshe was admitted to the hospital;E

(vi) Admittedly, fluids were administered to the patient as a partof the treatment protocol;

(vii) The administration of fluids ought to have been accompaniedby regular monitoring of blood levels which would haveFindicated that there was a precipitous decline in the plateletcounts and in the HCT levels;

(viii) Plasma leakage, hemorrhagic fever or dengue shock syndromeare likely concomitants in the trajectory of such a disease;

(ix) In the absence of regular monitoring, the treating doctors wereGguilty of medical negligence. As a result of their negligence,the doctors precluded themselves from receiving informationin regard to the status or progression of the disease;

(x) The findings of the SCDRC were reversed by the NCDRCwithout any basis or justification;H

(xi) NCDRC has found fault with the patient’s family for theadministration of aspirin in the day preceding her admission tothe hospital;

(xii) The fact that she was administered aspirin was disclosed tothe treating doctors at the time of admission, which issatisfactorily established by the medical records of the case;

(xiii) NCDRC, in the first appeal, has displaced the findings of factwhich have been arrived at by the SCDRC without any basisin the evidence on record; and

(xiv) On the question of compensation, the appellant had alsoinstituted a first appeal before the NCDRC since the award ofcompensation was inadequate. On the material which wasplaced on the record before the original authority, it is necessaryfor this Court to allow the appeal and to suitably enhance theamount of compensation.

17. On the other hand, learned counsel appearing on behalf of therespondents submitted that:

(i) The patient had been suffering from fever from several daysprior to her admission to the hospital. She was stable at thetime of admission on 15 November 2009;

(ii) The patient did not go into a situation of a dengue shocksyndrome or hemorrhagic fever during the course of the daywhen she was admitted to the hospital;

(iii) In such a situation, no requirement of regular monitoring ofHCT was warranted in accordance with the guidelines whichhave been prescribed by the Directorate of National VectorBorne Diseases Control Programme (DNVBDCP);

(iv) The above guidelines, which have been prescribed by the Unionof India under the National Rural Health Mission, would indicatethat it is only in a situation involving dengue hemorrhagic feveror dengue shock syndrome that further steps would benecessary;

(v) The fluids which were administered to the patient did notrequire a monitoring of the blood more than twice a day and itwas only in the evening that the HCT levels were required tobe evaluated; A

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A(vi) The patient had prior cardiac complications for which she hadbeen on an aspirin regime prior to admission to the hospital.She was carefully monitored by a team of four doctors at thehospital;

(vii) The treatment protocol which was followed was consistentBwith the guidelines which have been prescribed both by WHOas well as by the National Vector Borne Diseases ControlProgramme;

(viii) As held in the decision of this Court in Kusum Sharma vBatra Hospital and Medical Research Centre[3], the dutyCof care which is required of a doctor is one involving areasonable degree of skill and knowledge; and

(ix) The patient in the present case had prior complications andthe treatment which was administered followed an establishedprotocol.

D18. The rival submissions now fall for consideration.

19. We will proceed on the basis of the facts as they stand admittedon the basis of the record and in the counter affidavit which has beenfiled by the respondents.

20. Between 14 January 2009 when the blood report of the patientEwas obtained from Glaze Pathology Lab and the morning of the followingday on which she was admitted to the hospital, the platelet count hadrecorded a precipitous decline from 1,79,000 to 97,000. This undoubtedly,as the hospital urges in the present case, is a consequence of dengue.The patient had tested positive in the Dengue Antigen test. At 7.30 am,Fon 15 January 2009, her Hemoglobin was reported to be 13.4. Thepatient was thereafter placed on a treatment protocol involving theadministration of intravenous fluids.

21. The condition of the patient was serious enough to require heradmission to the Intensive Care Unit of the hospital. The hospital hasGjustified the administration of about 1200 ml of fluid between 7 am and 6pm when she developed bradycardia and cardiac arrest.

22. The real bone of contention in the present case is not thedecision which was taken by the doctors to place the patient on a regime H3 (2010) 3 SCC 480

of intravenous fluids which, for the purposes of the present appeals, theCourt ought to proceed as being on the basis of an established protocol.

23. The essential aspect of the case, which bears out the chargeof medical negligence, is that between 7.30 am when the patient wasadmitted to hospital and 6 pm when she developed cardiac arrest, thecourse of treatment which has been disclosed in the counter affidavitdoes not indicate any further monitoring of essential parametersparticularly those which could be detected by a laboratory analysis ofblood samples.

24. Since her admission and through the day, the patient wasadministered intravenous fluids. The fluids were enhanced at 6 pm by1.5 litres after she developed cardiac arrest. The record before theCourt indicates that even thereafter, it was only at 7.15 pm that herblood levels were monitored. The lab report indicated a hemoglobin levelof 8.1 and platelet count at 19,000. By then, the patient had developedacute signs of cardiac distress and she eventually died within a couple ofhours thereafter.

25. The requirement of carefully monitoring a patient in such asituation is stipulated both by the guidelines of the World HealthOrganisation on which the appellant has placed reliance as well as inthose incorporated by the Directorate of the National Vector BorneDiseases Control Programme in 2008.

26. The WHO guidelines indicate that Dengue is a ‘systemic anddynamic disease’ which usually consists of three phases i.e. febrile, criticaland recovery. There had been a precipitous decline in the patient’s plateletcount the day she was admitted to the hospital. The WHO guidelinesinter alia state as follows:

“2.1.2 Critical phase

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Progressive leukopenia (3) followed by a rapid decrease inplatelet count usually precedes plasma leakage. At this pointpatients without an increase in capillary permeability will improve,while those with increased capillary permeability may becomeworse as a result of lost plasma volume. The degree of plasmaleakage varies. Pleural effusion and ascites may be clinically A

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detectable depending on the degree of plasma leakage and thevolume of fluid therapy. Hence chest x-ray and abdominalultrasound can be useful tools for diagnoses. The degree ofincrease above the baseline haematocrit often reflects the severityof plasma leakage.”

Clause 2.3.2.2 of the WHO guidelines deals with patients whoshould be referred for in-hospital management (Group B).

“ Patients may need to be admitted to a secondary health carecentre for close observation, particularly as they approach thecritical phase. These include patients with warning signs, thosewith co-existing conditions that may make dengue or itsmanagement more complicated (such as pregnancy,infancy, old age, obesity, diabetes mellitus, renal failure,chronic haemolytic diseases), and those with certain socialcircumstances (such as living alone, or living far from a healthfacility without reliable means of transport).

If the patient has dengue with warning signs, the action plan shouldbe as follows:

• Obtain a reference haematocrit before fluid therapy. Give onlyisotonic solutions such as 0.9% saline, Ringer’s lactate, orHartmann’s solution. Start with 5–7 ml/ kg/hour for 1–2 hours,then reduce to 3–5 ml/kg/hr for 2–4 hours, and then reduce to2–3 ml/kg/hr or less according to the clinical response (TextboxesH, J and K).

• Reassess the clinical status and repeat the haematocrit. If thehaematocrit remains the same or rises only minimally, continuewith the same rate (2–3 ml/kg/hr) for another 2–4 hours. If thevital signs are worsening and haematocrit is rising rapidly, increasethe rate to 5–10 ml/kg/hour for 1–2 hours. Reassess theclinical status, repeat the haematocrit and review fluid infusionrates accordingly.

· Give the minimum intravenous fluid volume required to maintaingood perfusion and urine output of about 0.5 ml/kg/hr.Intravenous fluids are usually needed for only 24–48 hours.Reduce intravenous fluids gradually when the rate of plasmaleakage decreases towards the end of the critical phase. This is indicated by urine output and/or oral fluid intake that is/areadequate, or haematocrit decreasing below the baseline value ina stable patient.

• Patients with warning signs should be monitored by healthcare providers until the period of risk is over. A detailed fluid balanceshould be maintained. Parameters that should be monitored includevital signs and peripheral perfusion (1–4 hourly until the patient isout of the critical phase), urine output (4–6 hourly), haematocrit(before and after fluid replacement, then 6–12 hourly), bloodglucose, and other organ functions (such as renal profile, liverprofile, coagulation profile, as indicated).

· Patients should be monitored by health care providers fortemperature pattern, volume of fluid intake and losses, urineoutput (volume and frequency), warning signs, haematocrit, andwhite blood cell and platelet counts (Textbox L). Other laboratorytests (such as liver and renal functions tests) can be done,depending on the clinical picture and the facilities of the hospitalor health centre.”

According to clause 7.1 of the guidelines of the Directorate of theNational Vector Borne Diseases Control Programme (2008), the basicmanagement of dengue patients admitted to hospital includes the following:

“- a mosquito-free environment in hospital

- close monitoring of patient vitals, input and output, oxygensaturation, sensorium

- early identification of warning signs and symptoms

- avoid NSAID and intramuscular injections

- psychological support for patient and family.”

The presence of the following signs and symptoms requires closemonitoring and management (Clause 7.2):

“- respiratory distress

- oxygen desaturation

- severe abdominal pain

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- urine output less than 0.5 ml/kg/h

- laboratory evidence of thrombocytopenia/coagulopathy, risingHct, metabolic C- acidosis, derangement of liver/kidney function tests.”

27. The patient had a prior medical history which included catheterablation and paroxysmal supra ventricular tachycardia suggestive ofcardiac complications and thus fell in the group of patients that requirein-hospital management (Group B) under WHO guidelines. The patientDwas evidently suffering from abdominal discomfort and hospital authoritieswere required to closely monitor her condition. In failing to do so in atimely manner, the respondents were unable to meet the standard ofreasonable care expected of medical services.

28. The issue is not whether the patient had already entered aEsituation involving haemorrhagic fever or a dengue shock syndrome whenshe was admitted on the morning of 15 November 2009. The real chargeof medical negligence stems from the failure of the hospital to regularlymonitor the blood parameters of the patient during the course of the day.Had this been done, there can be no manner of doubt that the hospitalwould have been alive to a situation that there was a decline progressivelyFin the patient’s condition which eventually led to cardiac arrest.

29. This Court has consistently held in its decisions (the decisionin Kusum Sharma(supra) reiterates that principle) that the standard ofcare which is expected of a medical professional is the treatment whichis expected of one with a reasonable degree of skill and knowledge. AGmedical practitioner would be liable only where the conduct falls belowthe standards of a reasonably competent practitioner in the field.

30. Decisions of this Court elucidate on the standard of care whichis expected of medical practitioners. Medical negligence jurisprudencein India is characterized by a reliance on the ‘Bolam test’.H

In Bolam v Friern Hospital Management Committee[4], thedefendant doctor treating a patient suffering from mental illness washeld not guilty of medical negligence by the Queens Bench for failure toadminister muscle-relaxant drugs and using physical restraint in the courseof electro-convulsive therapy. Justice McNair, in his directions to thejury, laid down the following standard of care:

“...I myself would prefer to put it this way, that he is not guilty ofnegligence if he has acted in accordance with a practice acceptedas proper by a responsible body of medical men skilled in thatparticular art. I do not think there is much difference in sense. Itis just a different way of expressing the same thought. Putting itthe other way round, a man is not negligent, if he is acting inaccordance with such a practice, merely because there is a bodyof opinion who would take a contrary view…”

A careful reading of the Bolam case shows that the standard of“reasonableness” is implicit in the test. Thus, the court holds:

“…where you get a situation which involves the use of somespecial skill or competence, then the test as to whether there hasbeen negligence or not is not the test of the man on the top of aClapham omnibus, because he has not got this special skill. Thetest is the standard of the ordinary skilled man exercising andprofessing to have that special skill. A man need not possess thehighest expert skill; it is well established law that it is sufficient ifhe exercises the ordinary skill of an ordinary competent manexercising that particular art. I do not think that I quarrel muchwith any of the submissions in law which have been put beforeyou by counsel. Mr. Fox-Andrews put it in this way, that inthe case of a medical man, negligence means failure to actin accordance with the standards of reasonably competentmedical men at the time. That is a perfectly accuratestatement, as long as it is remembered that there may beone or more perfectly proper standards; and if he conformswith one of those proper standards, then he is not negligent.Mr. Fox-Andrews also was quite right, in my judgment, insaying that a mere personal belief that a particular techniqueis best is no defence unless that belief is based onreasonable grounds.”

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ABolam clarified that the standard imposes a duty on medicalprofessionals to ensure that obsolete methods are not employed:

“…At the same time, that does not mean that a medical man canobstinately and pig-headedly carry on with some old technique ifit has been proved to be contrary to what is really substantiallyBthe whole of informed medical opinion.”

31. A three judge Bench of this Court in Dr Laxman BalkrishnaJoshi v Dr Trimbak Bapu Godbole[5] stipulated that the standard to beapplied by a medical practitioner must be of a “reasonable degree ofcare”:

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“11. The duties which a doctor owes to his patient are clear. Aperson who holds himself out ready to give medical advice andtreatment impliedly undertakes that he is possessed of skill andknowledge for the purpose. Such a person when consulted by apatient owes him certain duties viz. a duty of care in decidingDwhether to undertake the case, a duty of care in deciding whattreatment to give or a duty of care in the administration of thattreatment. A breach of any of those duties gives a right of actionfor negligence to the patient. The practitioner must bring tohis task a reasonable degree of skill and knowledge andmust exercise a reasonable degree of care. Neither the veryEhighest nor a very low degree of care and competencejudged in the light of the particular circumstances of eachcase is what the law requires (cf. Halsbury’s Laws of England3rd Edn. Vol. 26 p. 17).”

32. In Jacob Mathew v State of Punjab[6], a three judge BenchFof this Court upheld the standard of the ordinary competent medicalpractitioner exercising an ordinary degree of professional skill, asenunciated in Bolam (supra).The Court held that the standard of caremust be in accordance with” general and approved practice”:

“24. The classical statement of law in Bolam has been widelyGaccepted as decisive of the standard of care required both ofprofessional men generally and medical practitioners in particular.It has been invariably cited with approval before the courts inIndia and applied as a touchstone to test the pleas of medical 5AIR 1969 SC 128H6(2005) 6 SCC 1

negligence. In tort, 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 a defendant charged withnegligence acted in accord 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.”

33. In Indian Medical Association v V P Shantha[7], a threejudge Bench of this Court made the following observations:

“Immunity from suit was enjoyed by certain professions on thegrounds of public interest. The trend is towards narrowing of suchimmunity and it is no longer available to architects in respect ofcertificates negligently given and to mutual valuers. Earlier,barristers were enjoying complete immunity but now even forthem the field is limited to work done in court and to a smallcategory of pre-trial work which is directly related to whattranspires in court…Medical practitioners do not enjoy anyimmunity and they can be sued in contract or tort on theground that they have failed to exercise reasonable skilland care.”

34. A three judge Bench of this Court in State of Punjab v ShivRam[8] and in Nizam’s Institute of Medical Sciences v Prasanth SDhananka[9]affirmed the judgement in Jacob Matthew.

35. A two judge Bench of this Court in Kusum Sharma (supra)laid down guidelines to govern cases of medical negligence. JusticeDalveer Bhandari, speaking for the Court, held:

“89. On scrutiny of the leading cases of medical negligence bothin our country and other countries specially the United Kingdom, 7 (1995) 6 SCC 651

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some basic principles emerge in dealing with the cases of medicalnegligence. While deciding whether the medical professional isguilty of medical negligence following well-known principles mustbe kept in view:

I. Negligence is the breach of a duty exercised 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.

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

III. The medical professional is expected to bring a reasonabledegree of skill and knowledge and must exercise a reasonabledegree of care. Neither the very highest nor a very low degree ofcare 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 hisconduct fell below that of the standards of a reasonablycompetent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope forgenuine difference of opinion and one professional doctor is clearlynot negligent merely because his conclusion differs from that ofother professional doctor.

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

VII. Negligence cannot be attributed to a doctor so long 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 liableif the 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 a halterround 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 their professionalduties without fear and apprehension.

X. The medical practitioners at times also have to be saved fromsuch a class of complainants who use criminal process as a toolfor pressurising the medical professionals/hospitals, particularlyprivate hospitals or clinics for extracting uncalled for compensation.Such malicious proceedings deserve to be discarded against themedical practitioners.

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

90. In our considered view, the aforementioned principles mustbe kept in view while deciding the cases of medical negligence.We should not be understood to have held that doctors can neverbe prosecuted for medical negligence. As long as the doctors haveperformed their duties and exercised an ordinary degree ofprofessional skill and competence, they cannot be held guilty ofmedical negligence. It is imperative that the doctors must be ableto perform their professional duties with free mind.”

He referred to the Bolam test and held thus:

(Emphasis supplied)

He referred to the Bolam test and held thus:

“72. The ratio of Bolam case is that it is enough for the defendantto show that the standard of care and the skill attained was that of A

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Athe ordinary competent medical practitioner exercising an ordinarydegree of professional skill. The fact that the respondentcharged with negligence acted in accordance with thegeneral and approved practice is enough to clear him ofthe charge. Two things are pertinent to be noted. Firstly, thestandard of care, when assessing the practice as adopted, is judgedBin the light of knowledge available at the time (of the incident),and not at the date of trial. Secondly, when the charge of negligencearises out of failure to use some particular equipment, the chargewould fail if the equipment was not generally available at thatpoint of time on which it is suggested as should haveCbeen used.”

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36. The “Bolam test” has been the subject of academic debateand evaluation in India and other jurisdictions. Among scholars, theBolam test has been criticized on the ground that it fails to make theDdistinction between the ordinary skilled doctor and the reasonablycompetent doctor.[10] The former places emphasis on the standardsadopted by the profession, while the latter denotes that negligence isconcerned with departures from what ought to have been done in thecircumstances and may be measured by reference to the hypotheticalE“reasonable doctor”. The Court must determine what the reasonabledoctor would have done and not the profession.

37. Since the formulation of the Bolam test, English Courts haveformulated a significantly nuanced doctrine pertaining to the standard ofcare. In Maynard v West Midlands Regional Health Authority,[11]FLord Scarman held thus:

“A case which is based on an allegation that a fully considereddecision of two consultants in the field of their special skill wasnegligent clearly presents certain difficulties of proof. It is notenough to show that there is a body of competent professionalGopinion which considers that there was a wrong decision, if therealso exists a body of professional opinion, equally competent, whichsupports the decision as reasonable in the circumstances.”

10 Michael Jones, Medical negligence, Sweet and Maxwell, Fifth Edition (2017)11 1985] 1 All ER 635H

ARUN KUMAR MANGLIK v. CHIRAYU HEALTH ANDMEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]

38. In Hucks v Cole,[12 ]the Court of Appeal found the defendantguilty of medical negligence. Sachs LJ held thus:

“Where the evidence shows that a lacuna in professional practiceexists by which risks of grave danger are knowingly taken, thenhowever small the risk the courts must anxiously examine thatlacuna, particularly if the risk can be easily and inexpensivelyavoided. If the court finds on an analysis of the reasons given fornot taking those precautions that in the light of current professionalknowledge there is no proper basis for the lacuna, and that it isdefinitely not reasonable that those risks should have been taken,its function is to state that fact, and where necessary to state thatit constitutes negligence.”

39. In Bolitho v City and Hackney Health Authority,[13]the House of Lords held that the course adopted by the medicalpractitioner must stand a test to reason:

“...in my view, the court is not bound to hold that a defendantdoctor escapes liability for negligent treatment or diagnosis justbecause he leads evidence from a number of medical expertswho are genuinely of opinion that the defendant’s treatment ordiagnosis accorded with sound medical practice. In the Bolamcase itself, McNair J. stated that the defendant had to have actedin accordance with the practice accepted as proper by a“responsible body of medical men.” Later, at p. 588, he referredto “a standard of practice recognised as proper by a competentreasonable body of opinion.” Again, in the passage which I havecited from Maynard’s case, Lord Scarman refers to a“respectable” body of professional opinion. The use of theseadjectives—responsible, reasonable and respectable—allshow that the court has to be satisfied that the exponentsof the body of opinion relied upon can demonstrate thatsuch opinion has a logical basis. In particular in cases involving,as they so often do, the weighing of risks against benefits, thejudge before accepting a body of opinion as being responsible,reasonable or respectable, will need to be satisfied that, in formingtheir views, the experts have directed their minds to the questionof comparative risks and benefits and have reached a defensibleconclusion on the matter.”

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Granting due deference to the profession of medical practitioners,Lord Browne-Wilkinson held that it is only in a ‘rare case’ whenprofessional opinion is not capable of ‘withstanding logical analysis’, thatthe judge may hold that it is not reasonable or responsible:

“These decisions demonstrate that in cases of diagnosis andtreatment there are cases where, despite a body of professionalopinion sanctioning the defendant’s conduct, the defendant canproperly be held liable for negligence (I am not here consideringquestions of disclosure of risk). In my judgment that is because, insome cases, it cannot be demonstrated to the judge’s satisfactionthat the body of opinion relied upon is reasonable or responsible.In the vast majority of cases the fact that distinguished experts inthe field are of a particular opinion will demonstrate thereasonableness of that opinion. In particular, where there arequestions of assessment of the relative risks and benefits ofadopting a particular medical practice, a reasonable viewnecessarily presupposes that the relative risks and benefits havebeen weighed by the experts in forming their opinions. But if, ina rare case, it can be demonstrated that the professionalopinion is not capable of withstanding logical analysis, thejudge is entitled to hold that the body of opinion is notreasonable or responsible.

I emphasise that in my view it will very seldom be right fora judge to reach the conclusion that views genuinely heldby a competent medical expert are unreasonable. Theassessment of medical risks and benefits is a matter of clinicaljudgment which a judge would not normally be able to makewithout expert evidence. As the quotation from Lord Scarmanmakes clear, it would be wrong to allow such assessment todeteriorate into seeking to persuade the judge to prefer one oftwo views both of which are capable of being logically supported.It is only where a judge can be satisfied that the body of expertopinion cannot be logically supported at all that such opinion willnot provide the benchmark by reference to which the defendant’sconduct falls to be assessed.”

ARUN KUMAR MANGLIK v. CHIRAYU HEALTH ANDMEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]

40. Closer home, in V Kishan Rao v Nikhil Super SpecialityHospital,[14 ]a two judge Bench of this Court highlighted the shortcomingsof the Bolam test:

“19. Even though Bolam test was accepted by this Court asproviding the standard norms in cases of medical negligence, inthe country of its origin, it is questioned on various grounds. It hasbeen found that the inherent danger in Bolam test is that if thecourts defer too readily to expert evidence medical standardswould obviously decline. Michael Jones in his treatise on MedicalNegligence (Sweet and Maxwell), 4th Edn., 2008 criticised theBolam test as it opts for the lowest common denominator. Thelearned author noted that opinion was gaining ground in Englandthat Bolam test should be restricted to those cases where anadverse result follows a course of treatment which has beenintentional and has been shown to benefit other patients previously.This should not be extended to certain types of medical accidentsmerely on the basis of how common they are. It is felt “to do thiswould set us on the slippery slope of excusing carelessness whenit happens often enough” (see Michael Jones on MedicalNegligence, para 3-039 at p. 246).

24. With the coming into effect of the Human Rights Act, 1998from 2-10-2000 in England, the State’s obligations under theEuropean Convention on Human Rights (ECHR) are justiciablein the domestic courts of England. Article 2 of the Human RightsAct, 1998 reads as under:

“Everyone’s right to life shall be protected by law. No one shallbe deprived of his life intentionally save in the execution of asentence of a court following his conviction of a crime for whichthis penalty is provided by law.”

25. Even though Bolam test “has not been uprooted” it has comeunder some criticism as has been noted in Jackson & Powell onProfessional Negligence (Sweet and Maxwell), 5th Edn., 2002.The learned authors have noted (see para 7-047 at p. 200 inProfessional Negligence) that there is an argument to the effectthat Bolam test is inconsistent with the right to life unless thedomestic courts construe that the requirement to take reasonable A

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Acare is equivalent with the requirement of making adequateprovision for medical care. In the context of suchjurisprudential thinking in England, time has come for thisCourt also to reconsider the parameters set down in Bolamtest as a guide to decide cases on medical negligence andspecially in view of Article 21 of our Constitution whichBencompasses within its guarantee, a right to medicaltreatment and medical care.”

41. Our law must take into account advances in medical scienceCand ensure that a patient-centric approach is adopted. The standard ofcare as enunciated in the Bolam case must evolve in consonance withits subsequent interpretation by English and Indian Courts. Significantly,the standard adopted by the three-judge bench of this Court in JacobMatthew includes the requirement that the course adopted by the medicalprofessional be consistent with “general and approved practice” and weDare bound by this decision.

42. In adopting a standard of care, Indian courts must be consciousof the fact that a large number of hospitals and medical units in ourcountry, especially in rural areas, do not have access to latest technologyand medical equipment. A two judge bench of this Court in Martin FED’Souza v Mohd. Ishfaq[15 ]held thus:

“37. The standard of care has to be judged in the light of knowledgeavailable at the time of the incident and not at the date of the trial.Also, where the charge of negligence is of failure to use someparticular equipment, the charge would fail if the equipment wasFnot generally available at that point of time.”

43. 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 medical professional mustensure that it is not unreasonable. The threshold to proveGunreasonableness is set with due regard to the risks associated withmedical treatment and the conditions under which medical professionalsfunction. This is to avoid a situation where doctors resort to ‘defensivemedicine’ to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professionalconduct has been proven with regard to the circumstances of that case,a professional cannot escape liability for medical evidence merely byrelying on a body of professional opinion.

44. In the present case, the record which stares in the face of theadjudicating authority establishes that between 7.30 am and 7 pm, thecritical parameters of the patient were not evaluated. The simple expedientof monitoring blood parameters was not undergone. This was incontravention of WHO guidelines as well as the guidelines prescribedby the Directorate of National Vector Borne Diseases ControlProgramme. It was the finding of the Medical Council of India thatwhile treatment was administered to the patient according to theseguidelines, the patient did not receive timely treatment. It had accordinglyadministered a warning to the respondents to be more careful in thefuture. In failing to provide medical treatment in accordance with medicalguidelines, the respondents failed to satisfy the standard of reasonablecare as laid down in the Bolam case and adopted by Indian Courts. Tosay that the patient or her family would have resisted a blood test, as isurged by the respondents, is merely a conjecture. Since no test wasdone, such an explanation cannot be accepted.

45. The NCDRC had before it a well-considered judgment of theSCDRC based on the evidence on the record. While the jurisdiction ofan adjudicatory authority in a first appeal is co-extensive with that of theoriginal authority, the NCDRC has displaced the findings of fact whichhave been arrived at by the SCDRC without any cogent reasoning.

46. The appellate authority has placed a considerable degree ofreliance on the fact that the patient was on aspirin. This circumstancewas drawn to the attention of the treating doctors at the time of admission.The NCDRC has merely observed that once she was admitted to thehospital, the patient was given medicines. This, in our view, is aninsufficient basis to displace the findings of fact and conclusions recordedby the SCDRC.

47. For the above reasons, we are of the view that the judgmentof the NCDRC is unsustainable. There was no basis or justification toreverse the finding of medical negligence which was arrived at by theSCDRC.

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A48. However, in our view, there is no basis for recording a findingof medical negligence against the Director of the hospital. The Directorof the hospital was not the treating doctor or the referring doctor. Hence,while the finding of medical negligence against the hospital would standconfirmed, the second respondent would not be personally liable.B49. That leads the Court to the question of damages. Finding thehospital and its Director guilty of medical negligence, the SCDRC directedcompensation in the amount of Rs. 6 lakhs together with interest at 9 percent.

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50. While quantifying the compensation, the SCDRC was in errorCin holding that since the son and daughter of the appellant are “highlyeducated and working” and had not joined as complainants, thecomplainant himself would be entitled to receive compensation only inthe amount of Rs. 6 lakhs.

51. The complainant has lost his spouse, who was 56 years ofDage. Though she was not employed, it is now well settled by a catena ofdecisions of this Court that the contribution made by a non-working spouseto the welfare of the family has an economic equivalent.

52. In Lata Wadhwa v State of Bihar,[16] a three judge Bench ofthis Court computed damages to be paid to dependants of deceasedEpersons as well as burn victims in the aftermath of a fire at the factorypremises. The Court took into consideration the multifarious servicesrendered to the home by a home-maker and held the estimate arrived atRs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000per annum for the age group of 34 to 59 years.

F53. In Malay Kumar Ganguly v Sukumar Mukherjee,[17] JusticeS B Sinha held thus:

“172. Loss of wife to a husband may always be truly compensatedby way of mandatory compensation. How one would do it hasbeen baffling the court for a long time. For compensating a husbandfor loss of his wife, therefore, the courts consider the loss of incomeGto the family. It may not be difficult to do when she had beenearning. Even otherwise a wife’s contribution to the family in termsof money can always be worked out. Every housewife makes acontribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. Itdepends upon her educational qualification, her own upbringing,status, husband’s income, etc.”

Thus, in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that thecontribution is significant and capable of being measured in monetaryterms.

54. In assessing the amount of compensation, we have been guidedby the principle which has been laid down by the Constitution BenchinLata Wadhwa and in National Insurance Company Ltd. v PranaySethi[18]with suitable modifications in a case involving medical negligence.

55. In our view, the interests of justice would be met, if the amountof compensation is enhanced. We accordingly, direct that the appellantshall be entitled to receive an amount of Rs. 15 lakhs by way ofcompensation from the first respondent.

56. The compensation, as awarded, shall carry interest at the rateof 9 per cent per annum from the date of the institution of the complaintbefore the SCDRC until payment or realisation. Payment should beeffected within two months.

57. The appeals are allowed in these terms. There shall be noorder as to costs.

Kalpana K. Tripathy

Appeals allowed.

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