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REPORTABLE   

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 227-228 OF 2019 (@SLP (C) Nos. 30119-30120 of 2016)

ARUN KUMAR MANGLIK                                                Appellant(s)                   

 VERSUS

 CHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR.         Respondent(s)   

  WITH

 CIVIL APPEAL NO. 229 OF 2019

(@ SLP(C) No. 865 OF 2019) @ Diary No. 44846/2018

J U D G M E N T   

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 Disputes Redressal Commission2 holding the

1 NCDRC 2 SCDRC

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respondents guilty of medical negligence in the treatment of the spouse of the appellant

which eventually led to her death on 15 November 2009. In consequence, the award of

compensation of Rs. 6,00,000 awarded, together with interest, has been reversed.  

4 The spouse of the appellant, Madhu Manglik, was about 56 years of age, when

on  14  November,  2009,  she  was  diagnosed  with  dengue  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 hospital at Bhopal at about 7

am on 15 November 2009. She was immediately admitted to the Intensive Care Unit.

Though she was afebrile, she reported accompanying signs of dengue fever including

headache, body ache and a general  sense of restlessness. The patient had a prior

medical  history  which  included  catheter  ablation  and  paroxysmal  supra  ventricular

tachycardia suggestive of cardiac complications.

5 Upon admission at  about 7.30 am, basic investigations were carried out.  The

blood  report,  together  with  the  accompanying  clinical  examination  indicated  the

following position:

“Hb 13.4 TLC 3000/Cumm, Platelet count 97000/cumim, PS for MP no malarial parasite seen Blood urea 21 mg% Serum bilirubin img% SGPT 521 U/L, SGOT 105Mg/dl ELECTROLYTE Sodium 140 meq/L Potasium 4.0 meq/L Ex R4 Urine test normal Ex R6 10.00 am – Pulse-88/min, Bp. 130/88 mm Hg Temp. A febrile c/o Pain in abdomen

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At 2.00 pm – p-128/min, mildly febrile BP – 110/70 mm Hg”

           Since the patient was complaining of abdominal discomfort, an ultrasonography of the

abdomen was carried out.

6 By 6 pm, on the date of admission the patient was sinking, her blood pressure

was  non-recordable,  extremities  were  cold  and the pulse was  non-palpable.  In  the

meantime, the patient was placed on a regime of administering intravenous fluids. The

administration of 2500ml of fluids was planned over the course of 24 hours. Between 7

am and 6 pm, she was administered about 1200 ml of fluids. The patient developed

bradycardia  and  cardiac  arrest.  Faced  with  this  situation,  the  treating  doctors

administered about 1.5 litres of extra fluids. Fluids and colloids were administered for

increasing the blood pressure.

7 Since the blood pressure of the patient did not improve, she was 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.

8 Belatedly,  at  7.15  pm,  another  blood  sample  was  taken,  which  indicated  the

following results:-

“Hb – 8.1/d/ TLC-7,400/Cumm Platelet count 19000/cmm Ex R 10 Total protein- 3.9 gms% A/G Ratio – 2 SGOT 169 IU/L”             

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

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10 A complaint of medical negligence was instituted before the Medical Council of

India.

11 The Ethics Committee of the Medical Council of India came to the conclusion on

20 February 2015 that though the treating doctors had administered treatment to the

patient in accordance with the established medical guidelines, the treatment was not

timely.  The  Ethics  Committee,  prima  facie,  found  that  there  was  professional

misconduct on the part of both the Director of the Hospital Dr Ajay Goenka (respondent

No. 2) and Dr Abhay Tyagi. The Ethics Committee observed thus:

“…..After perusing the statements given by both the parties and documents  on  record  in  the  case,  the  Ethics  Committee discussed  the  matter  in  detailed  and  noted  that  the  patient admitted in Chirayu Health & Medicare Pvt.  Ltd.,  Malipura, Bhopal on the advice of Dr. A. Goenka but he never visited in hospital to see the patient. The committee further noted that treatment administered to the deceased in the hospital was correct as per the medical guidelines but not given timely.   Although, Dr. Goenka did not  went (sic)to hospital  to see the patient as the patient admitted there as per his assurance and advice,  therefore,  the  Ethics  committee  prima facie  found that there is a professional misconduct on the part of both the doctors and decided to issue a warning to Dr. A. Goenka and Dr. Abhay Tyagi with the directions to be more careful in future while treating such type of patients/cases”

(Emphasis supplied)   

12 This recommendation was accepted by the Executive Committee of the Medical

Council.  The appellate order  of  the Medical  Council  was communicated on 15 July

2015.

13 The appellant  instituted a complaint  before  the SCDRC seeking an award of

compensation in the amount of Rs. 48 lakhs on the ground that his spouse  suffered an

untimely death due to the medical negligence of the treating doctors at the hospital.

14 By its judgment dated 27 April 2015, the SCDRC came to the conclusion that a

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case of medical negligence was established. An amount of Rs. 6 lakhs was awarded to

the appellant by way of compensation, together with interest at the rate of 9 per cent

per annum.

15 In  appeal,  these  findings  have  been  reversed  by  the  NCDRC  and  in

consequence, the claim stands dismissed.

16 Assailing the decision of the NCDRC, learned counsel appearing on behalf of the

appellant submits that:

(i)       The patient was admitted to the hospital on 15 November 2009 with a reported

case of dengue, though in a stable condition;  

(ii)      The hospital and the treating doctors failed to follow the established protocol in

treating a case of dengue;  

(iii)      The line of treatment was contrary to established guidelines, formulated by the

World Health Organisation, titled “Dengue Guidelines for Diagnosis, Treatment,

Prevention and Control”;

(iv)     Except for the blood sample which was taken at about 7.30 am, no further effort

was made to determine the hematocrit levels (HCT) during the course of the day

and it was only when the patient suffered a cardiac arrest after 6 pm that blood

investigations were done at about 7.15 pm;    

(v)       The  trajectory  of  the illness  indicated  that  the  platelet  levels  which  stood  at

1,79,000  on  14  November  2009 had  recorded  a  steep  decline  and  stood  at

97,000 on 15 January 2009 when she was admitted to the hospital;    

(vi)     Admittedly,  fluids  were administered to  the patient  as a  part  of  the treatment

protocol;   

(vii)     The  administration  of  fluids  ought  to  have  been  accompanied  by  regular

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monitoring  of  blood  levels  which  would  have  indicated  that  there  was  a

precipitous decline in the platelet counts and in the HCT levels;

(viii)    Plasma  leakage,  hemorrhagic  fever  or  dengue  shock  syndrome  are  likely

concomitants in the trajectory of such a disease;    

(ix)     In the absence of regular monitoring, the treating doctors were guilty of medical

negligence. As a result  of  their  negligence, the doctors precluded themselves

from receiving information in regard to the status or progression of the disease;   

(x)      The findings of the SCDRC were reversed by the NCDRC without any basis or

justification;   

(xi)     NCDRC has found fault with the patient’s family for the administration of aspirin in

the day preceding her admission to the hospital;  

(xii)    The fact that she was administered aspirin was disclosed to the treating doctors

at  the  time  of  admission,  which  is  satisfactorily  established  by  the  medical

records of the case;

(xiii)   NCDRC, in the first appeal, has displaced the findings of fact which have been

arrived at by the SCDRC without any basis in the evidence on record; and

(xiv)  On the question of compensation, the appellant had also instituted a first appeal

before the NCDRC since the award of compensation was inadequate. On the

material  which  was  placed  on  the  record  before  the  original  authority,  it  is

necessary for this Court to allow the appeal and to suitably enhance the amount

of compensation.

17 On the  other  hand,  learned  counsel  appearing  on behalf  of  the  respondents

submitted that:

(i) The  patient  had  been  suffering  from  fever  from  several  days  prior  to  her

admission  to  the  hospital.  She  was  stable  at  the  time  of  admission  on  15

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November 2009;

(ii) The  patient  did  not  go  into  a  situation  of  a  dengue  shock  syndrome  or

hemorrhagic fever during the course of the day when she was admitted to the

hospital;   

(iii) In such a situation, no requirement of regular monitoring of HCT was warranted

in accordance with the guidelines which have been prescribed by the Directorate

of National Vector Borne Diseases Control Programme (DNVBDCP);  

(iv) The above guidelines, which have been prescribed by the Union of India under

the National Rural  Health Mission, would indicate that it  is  only in a situation

involving dengue hemorrhagic fever or dengue shock syndrome that further steps

would be necessary;

(v) The fluids which were administered to the patient did not require a  monitoring of

the blood more than twice a day and it was only in the evening that the HCT

levels were required to be evaluated;

(vi) The patient had prior cardiac complications for which she had been on an aspirin

regime prior to admission to the hospital. She was carefully monitored by a team

of four doctors at the hospital;

(vii) The treatment protocol which was followed was consistent with the guidelines

which have been prescribed both by WHO as well  as by the National Vector

Borne Diseases Control Programme;

(viii)  As held in the decision of this Court in Kusum Sharma  v Batra Hospital and

Medical Research Centre3, the duty of care which is required of a doctor is one

involving a reasonable degree of skill and knowledge; and

(ix)   The patient in the present case had prior complications and the treatment which

was administered followed an established protocol. 3 (2010) 3 SCC 480

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18 The rival submissions now fall for consideration.

19 We will proceed on the basis of the facts as they stand admitted on the basis of

the record and in the counter affidavit which has been filed by the respondents.  

20    Between 14 January 2009 when the blood report of the patient was obtained from

Glaze Pathology Lab and the morning of the following day on which she was admitted

to the hospital, the platelet count had recorded 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, on

15 January 2009, her Hemoglobin was reported to be 13.4.  The patient was thereafter

placed on a treatment protocol involving the administration of intravenous fluids.

21 The condition of the patient was serious enough to require her admission to the

Intensive Care Unit of the hospital. The hospital has justified the administration of about

1200 ml of fluid between 7 am and 6 pm when she developed bradycardia and cardiac

arrest.

22 The real bone of contention in the present case is not the decision which was

taken by the doctors to place the patient on a regime of intravenous fluids which, for the

purposes of the present appeals, the Court ought to proceed as being on the basis of

an established protocol.

23 The  essential  aspect  of  the  case,  which  bears  out  the  charge  of  medical

negligence, is that between 7.30 am when the patient was admitted to hospital and 6

pm  when  she  developed  cardiac  arrest,  the  course  of  treatment  which  has  been

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disclosed in the counter affidavit does not indicate any further monitoring of essential

parameters particularly those which could be detected by a laboratory analysis of blood

samples.

24 Since  her  admission  and  through  the  day,  the  patient  was  administered

intravenous fluids. The fluids were enhanced at 6 pm by 1.5 litres after she developed

cardiac arrest.  The record before the Court indicates that even thereafter, it was only at

7.15 pm that her blood levels were monitored. The lab report indicated a hemoglobin

level of 8.1 and platelet count at 19,000.   By then, the patient had developed acute

signs of cardiac distress and she eventually died within a couple of hours thereafter.   

25 The requirement of carefully monitoring a patient in such a situation is stipulated

both by the guidelines of the World Health Organisation on which the appellant has

placed reliance as well  as in those incorporated by the Directorate of  the National

Vector Borne Diseases Control Programme in 2008.

26   The WHO guidelines indicate that Dengue is a ‘systemic and dynamic disease’

which usually consists of three phases i.e. febrile, critical and recovery. There had been

a precipitous decline in the patient’s platelet count the day she was admitted to the

hospital. The WHO guidelines inter alia state as follows:

 “2.1.2 Critical phase     …… Progressive leukopenia (3) followed by a rapid decrease in platelet count usually precedes plasma leakage.   At this point patients without an increase in capillary permeability will improve, while  those  with  increased  capillary  permeability  may  become worse as a result of lost plasma volume.   The degree of plasma leakage  varies.  Pleural  effusion  and  ascites  may  be  clinically detectable depending on the degree of plasma leakage and the volume  of  fluid  therapy.   Hence  chest  x-ray  and  abdominal ultrasound  can be useful  tools  for  diagnoses.    The degree  of increase  above  the  baseline  haematocrit  often  reflects  the severity of plasma leakage.”

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Clause 2.3.2.2 of the WHO guidelines deals with patients who should be referred for in-

hospital management (Group B).  

“ Patients  may need to be admitted to a secondary health care centre for close observation, particularly  as  they  approach  the critical   phase.   These include patients   with   warning  signs, those  with co-existing conditions that may make dengue or its  management  more complicated  (such  as  pregnancy, infancy,  old  age,  obesity,  diabetes  mellitus,  renal failure, chronic  haemolytic  diseases), and  those  with  certain  social circumstances (such as living alone, or living far from a health facility without reliable means of transport). If  the  patient  has  dengue  with  warning  signs,  the  action  plan should be as follows: • Obtain a reference haematocrit before fluid therapy. Give only isotonic  solutions  such  as  0.9%  saline,  Ringer’s  lactate,  or Hartmann’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 to 2– 3 ml/kg/hr or less according to the clinical response (Textboxes H, J and K). •  Reassess the clinical status and repeat the haematocrit. If the haematocrit remains the same or rises only minimally, continue with the same rate (2–3 ml/kg/hr)  for another 2–4 hours. If the vital  signs  are  worsening  and  haematocrit  is  rising   rapidly, increase   the   rate   to   5–10   ml/kg/hour   for   1–2   hours. Reassess  the  clinical status, repeat the haematocrit and review fluid infusion rates accordingly.

 Give the minimum intravenous fluid volume required to maintain good 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  plasma  leakage decreases towards the end of the critical phase. This is indicated by urine output and/or  oral fluid intake that  is/are adequate,  or haematocrit   decreasing  below  the  baseline  value  in  a  stable patient.

•   Patients with warning signs should be monitored by health care providers until the period of risk is over. A detailed fluid balance should be maintained.     Parameters that should be monitored include vital signs and peripheral perfusion (1–4 hourly until the patient  is  out  of  the  critical  phase),  urine  output  (4–6  hourly), haematocrit  (before  and  after  fluid  replacement,  then  6–12 hourly), blood    glucose, and other organ functions (such as renal profile, liver profile, coagulation   profile, as indicated).  Patients should be monitored by health care providers for

temperature  pattern,  volume  of  fluid  intake  and  losses,  urine output (volume and frequency), warning  signs, haematocrit, and white blood cell and platelet counts (Textbox L). Other laboratory tests  (such  as  liver  and  renal  functions  tests)  can  be  done, depending  on the clinical picture and the facilities of the hospital or health centre.”

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According to clause 7.1 of the guidelines of the Directorate of the National Vector Borne

Diseases  Control  Programme  (2008),  the  basic  management  of  dengue  patients

admitted to hospital includes the following:

“- a mosquito-free environment in hospital - close monitoring of  patient  vitals,  input  and output,  oxygen

saturation, 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  close  monitoring  and

management (Clause 7.2):

“-  respiratory distress - oxygen desaturation - severe abdominal pain - excessive vomiting - altered sensorium, confusion - convulsions - rapid and thready pulse - narrowing of pulse pressure less than 20 mmHg - urine output less than 0.5 ml/kg/h - laboratory  evidence  of thrombocytopenia/coagulopathy,   

rising  Hct,  metabolic - acidosis, derangement of liver/kidney function tests.”

27 The patient  had a  prior  medical  history  which included  catheter  ablation  and

paroxysmal supra ventricular tachycardia suggestive of cardiac complications and thus

fell in the group of patients that require in-hospital management (Group B) under WHO

guidelines. The patient was evidently suffering from abdominal discomfort and hospital

authorities were required to closely monitor her condition. In failing to do so in a timely

manner,  the  respondents  were  unable  to  meet  the  standard  of  reasonable  care

expected of medical services.

28 The issue is not whether the patient had already entered a situation involving

haemorrhagic  fever  or  a  dengue  shock  syndrome  when  she  was  admitted  on  the

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morning of 15 November 2009.  The real charge of medical negligence stems from the

failure of the hospital to regularly monitor 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

hospital would have been alive to a situation that there was a decline progressively in

the patient’s condition which eventually led to cardiac arrest.

29 This Court has consistently held in its decisions (the decision in Kusum Sharma

(supra) reiterates that principle) that the standard of care which is expected of a medical

professional is the treatment which is expected of one with a reasonable degree of skill

and knowledge.  A medical  practitioner  would be liable  only  where the conduct  falls

below the standards of a reasonably competent practitioner in the field.   

30 Decisions of this Court elucidate on the standard of care which is expected of

medical practitioners. Medical negligence jurisprudence in India is characterized by a

reliance on the ‘Bolam test’.  

In Bolam v Friern Hospital Management Committee4, the defendant doctor treating a

patient suffering from mental illness was held not guilty of medical negligence by the

Queens  Bench  for  failure  to  administer  muscle-relaxant  drugs  and  using  physical

restraint in the course of electro-convulsive therapy. Justice McNair, in his directions to

the jury, laid down the following standard of care:

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

4 [1957] 1 WLR 582

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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  some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test  is the standard of  the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he  exercises  the  ordinary  skill  of  an  ordinary  competent  man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Mr. Fox-Andrews put it in this way, that in the case of a medical man, negligence means failure to act in accordance  with  the  standards  of  reasonably  competent medical  men  at  the  time.  That  is  a perfectly  accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if he conforms with one of those proper standards, then he is not negligent.  Mr. Fox-Andrews also was quite right, in my judgment, in saying that a mere personal belief that a particular technique is best is  no  defence  unless  that  belief  is  based  on  reasonable grounds.”

(Emphasis supplied)

Bolam clarified that the standard imposes a duty on medical professionals to ensure

that obsolete methods are not employed:   

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

31 A three judge Bench of this Court in Dr Laxman Balkrishna Joshi v Dr Trimbak

Bapu Godbole5 stipulated that the standard to be applied by a medical practitioner

must be of a “reasonable degree of care”:  

“11. The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient  owes him certain duties viz.  a duty of  care in deciding whether to undertake the case, a duty of care in deciding what

5 AIR 1969 SC 128

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treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise  a  reasonable  degree  of  care.  Neither  the  very highest  nor  a  very  low  degree  of  care  and  competence judged in the light of the particular circumstances of each case is what the law requires  (cf. Halsbury's Laws of England 3rd Edn. Vol. 26 p. 17).”  

32 In Jacob Mathew v State of Punjab6, a three judge Bench of this Court upheld the

standard of the ordinary competent medical practitioner exercising an ordinary degree

of professional skill, as enunciated in Bolam (supra). The Court held that the standard

of care must be in accordance with “general and approved practice”:

“24.  The classical  statement  of  law in  Bolam  has been widely accepted as  decisive of  the standard of  care required  both of professional men generally and medical practitioners in particular. It  has  been invariably  cited  with  approval  before  the  courts  in India and applied as a touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill  attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional  skill.  The  fact  that  a  defendant  charged  with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent  to  be  noted.  Firstly,  the  standard  of  care,  when assessing  the  practice  as  adopted,  is  judged  in  the  light  of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used.”

33 In  Indian Medical Association v  V P Shantha7,  a three judge Bench of this

Court made the following observations:

“Immunity from suit  was enjoyed by certain professions on the grounds of public interest. The trend is towards narrowing of such immunity and it is no longer available to architects in respect of certificates  negligently  given  and  to  mutual  valuers.  Earlier, barristers  were  enjoying  complete  immunity  but  now  even  for them the field  is  limited to  work  done in  court  and to  a small category  of  pre-trial  work  which  is  directly  related  to  what transpires  in  court…Medical  practitioners  do  not  enjoy  any immunity and they can be sued in contract  or tort  on the

6 (2005) 6 SCC 1 7 (1995) 6 SCC 651

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ground that they have failed to exercise reasonable skill and care.”

                                                   (Emphasis supplied)

34 A three  judge  Bench  of  this  Court  in  State  of  Punjab  v Shiv  Ram8 and  in

Nizam’s  Institute  of  Medical  Sciences  v Prasanth  S  Dhananka9 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.  Justice  Dalveer  Bhandari,  speaking for  the

Court, held:  

“89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some  basic  principles  emerge  in  dealing  with  the  cases  of medical  negligence.  While  deciding  whether  the  medical professional is guilty of medical negligence following well-known principles must be kept in view:

I. Negligence is the breach of a duty exercised by omission to do something  which  a  reasonable  man,  guided  by  those considerations  which  ordinarily  regulate  the  conduct  of  human affairs,  would  do,  or  doing  something  which  a  prudent  and reasonable man would not do.

II.  Negligence  is  an  essential  ingredient  of  the  offence.  The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

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

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

V.  In  the  realm of  diagnosis  and treatment  there  is  scope for genuine  difference  of  opinion  and  one  professional  doctor  is clearly not negligent merely because his conclusion differs from that of other professional doctor.

VI.  The  medical  professional  is  often  called  upon  to  adopt  a procedure which involves higher  element  of  risk,  but  which he honestly believes as providing greater chances of success for the

8 (2005) 7 SCC 1 9 (2009) 6 SCC 1

16

patient  rather than a procedure involving lesser risk but higher chances of  failure.  Just  because a  professional  looking to  the gravity of illness has taken higher element of risk to redeem the patient  out  of  his/her  suffering which  did  not  yield  the  desired result may not amount to negligence.

VII.  Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because  the  doctor  chooses  one  course  of  action  in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. VIII.  It  would not be conducive to the efficiency of  the medical profession if no doctor could administer medicine without a halter round his neck.

IX.  It  is  our  bounden duty and obligation of  the civil  society to ensure  that  the  medical  professionals  are  not  unnecessarily harassed or humiliated so that they can perform their professional duties without fear and apprehension.

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

XI.  The medical  professionals  are entitled to  get  protection so long  as  they  perform  their  duties  with  reasonable  skill  and competence and in the interest of the patients. The interest and welfare  of  the  patients  have  to  be  paramount  for  the  medical professionals.

90. In our considered view, the aforementioned principles must be kept in view while deciding the cases of medical negligence. We should not be understood to have held that doctors can never be prosecuted for medical negligence. As long as the doctors have performed  their  duties  and  exercised  an  ordinary  degree  of professional skill and competence, they cannot be held guilty of medical negligence. It is imperative that the doctors must be able to perform their professional duties with free mind.”

                                           (Emphasis supplied)

He referred to the Bolam test and held thus:

“72. The ratio of Bolam case is that it is enough for the defendant to show that the standard of care and the skill attained was that of the  ordinary  competent  medical  practitioner  exercising  an ordinary  degree  of  professional  skill.  The  fact  that  the respondent  charged  with  negligence  acted  in  accordance with the general  and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged  in  the  light  of  knowledge  available  at  the  time  (of  the incident), and not at the date of trial. Secondly, when the charge of  negligence  arises  out  of  failure  to  use  some  particular

17

equipment,  the  charge  would  fail  if  the  equipment  was  not generally available at that point of time on which it is suggested as should have been used.”

                                  (Emphasis supplied)

36 The “Bolam test” has been the subject of academic debate and evaluation in

India and other jurisdictions.   Among scholars, the  Bolam test has been criticized on

the ground that it fails to make the distinction between the ordinary skilled doctor and

the  reasonably  competent  doctor.10 The  former  places  emphasis  on  the  standards

adopted by the profession, while the latter denotes that negligence is concerned with

departures  from what  ought  to  have been done in  the  circumstances  and may be

measured  by  reference  to  the  hypothetical  “reasonable  doctor”.  The  Court  must

determine what the reasonable doctor would have done and not the profession.   

37 Since  the  formulation  of  the  Bolam  test,  English  Courts  have  formulated  a

significantly nuanced doctrine pertaining to the standard of care. In  Maynard v West

Midlands Regional Health Authority,11 Lord Scarman held thus:  

“A case which is based on an allegation that a fully considered decision of two consultants in the field of their special skill was negligent  clearly  presents  certain  difficulties  of  proof.  It  is  not enough to show that there is a body of competent professional opinion which considers that there was a wrong decision, if there also exists  a  body of  professional  opinion,  equally  competent, which supports the decision as reasonable in the circumstances.”

38  In  Hucks v  Cole,12 the Court of Appeal found the defendant guilty of medical

negligence. Sachs LJ held thus:

“Where the evidence shows that a lacuna in professional practice exists by which risks of grave danger are knowingly taken, then however small  the risk the courts must anxiously examine that lacuna,  particularly  if  the  risk  can be easily  and inexpensively avoided. If the court finds on an analysis of the reasons given for

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

12 (1968) 118 New LJ 469

18

not  taking  those  precautions  that  in  the  light  of  current professional knowledge there is no proper basis for the lacuna, and that  it  is  definitely  not  reasonable  that  those risks  should have been taken,  its  function  is  to  state  that  fact,  and where necessary to state that it constitutes negligence.”

39     In Bolitho v City and Hackney Health Authority,13 the House of Lords held that

the course adopted by the medical practitioner must stand a test to reason:

“...in my view, the court  is  not  bound to hold that  a defendant doctor escapes liability for negligent treatment or diagnosis just because he leads evidence from a number of  medical  experts who are genuinely of  opinion that  the defendant's treatment or diagnosis  accorded with  sound medical  practice.  In  the  Bolam case itself, McNair J. stated that the defendant had to have acted in  accordance  with  the  practice  accepted  as  proper  by  a “responsible body of medical men.” Later, at p. 588, he referred to “a  standard  of  practice  recognised  as  proper  by  a  competent reasonable body of opinion.” Again, in the passage which I have cited  from  Maynard's  case,  Lord  Scarman  refers  to  a “respectable”  body  of  professional  opinion.  The  use  of  these adjectives—responsible,  reasonable  and  respectable—all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before  accepting  a  body  of  opinion  as  being  responsible, reasonable  or  respectable,  will  need  to  be  satisfied  that,  in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”                                                             (Emphasis supplied)

Granting  due  deference  to  the  profession  of  medical  practitioners,  Lord  Browne-

Wilkinson held that it is only in a ‘rare case’ when professional opinion is not capable of

‘withstanding  logical  analysis’,  that  the judge  may hold  that  it  is  not  reasonable  or

responsible:

“These  decisions  demonstrate  that  in  cases  of  diagnosis  and treatment there are cases where, despite a body of professional opinion sanctioning the defendant's conduct, the defendant can properly be held liable for negligence (I am not here considering questions of disclosure of risk). In my judgment that is because, in  some  cases,  it  cannot  be  demonstrated  to  the  judge's satisfaction that the body of opinion relied upon is reasonable or responsible.  In  the  vast  majority  of  cases  the  fact  that distinguished experts in the field are of a particular opinion will demonstrate  the  reasonableness  of  that  opinion.  In  particular, where there are questions of assessment of the relative risks and

13 (1996) 4 All ER 771

19

benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. But if,  in  a  rare  case,  it  can  be  demonstrated  that  the professional opinion is not capable of withstanding logical analysis,  the  judge  is  entitled  to  hold  that  the  body  of opinion is not reasonable or responsible.

I emphasise that in my view it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of  medical  risks  and  benefits  is  a  matter  of  clinical  judgment which a judge would not normally be able to make without expert evidence.  As the quotation from Lord Scarman makes clear,  it would  be  wrong  to  allow  such  assessment  to  deteriorate  into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at  all  that  such opinion will  not  provide the benchmark by reference to which the defendant's conduct falls to be assessed.”                                                             (Emphasis supplied)

40 Closer  home, in V Kishan Rao  v Nikhil  Super Speciality Hospital,14 a two

judge Bench of this Court highlighted the shortcomings of the Bolam test:  

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

24 With the coming into effect of the Human Rights Act, 1998 from 2- 10-2000  in  England,  the  State's  obligations  under  the  European Convention on Human Rights (ECHR) are justiciable in the domestic courts of England. Article 2 of the Human Rights Act, 1998 reads as under: “Everyone's right  to life shall  be protected by law. No one shall  be deprived of his life intentionally save in the execution of a sentence of a court  following his  conviction of  a crime for  which this  penalty  is provided by law.”

25.  Even though  Bolam test  “has  not  been uprooted”  it  has  come under  some  criticism  as  has  been  noted  in  Jackson  &  Powell  on

14  (2010) 5 SCC 513

20

Professional  Negligence (Sweet and Maxwell),  5th Edn.,  2002.  The learned authors have noted (see para 7-047 at p. 200 in Professional Negligence) that there is an argument to the effect that Bolam test is inconsistent with the right to life unless the domestic courts construe that  the requirement to take reasonable care is equivalent  with the requirement  of  making adequate provision for  medical  care.  In  the context  of  such  jurisprudential  thinking  in  England,  time  has come for this Court also to reconsider the parameters set down in Bolam test as a guide to decide cases on medical negligence and  specially  in  view  of  Article  21  of  our  Constitution  which encompasses within its guarantee, a right to medical treatment and medical care.”

                                       (Emphasis supplied)

41 Our law must take into account advances in medical science and ensure that a

patient-centric approach is adopted.  The standard of care as enunciated in the Bolam

case must  evolve  in  consonance  with  its  subsequent  interpretation  by  English  and

Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court

in  Jacob Matthew includes the requirement that the course adopted by the medical

professional be consistent with “general and approved practice” and we are bound by

this decision.

42 In adopting a standard of care, Indian courts must be conscious of the fact that a

large number of hospitals and medical units in our country, especially in rural areas, do

not have access to latest technology and medical equipment. A two judge bench of this

Court in Martin F D'Souza v Mohd. Ishfaq15  held thus:

“37. The  standard  of  care  has  to  be  judged  in  the  light  of knowledge available 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  some  particular  equipment,  the  charge  would  fail  if  the equipment was not generally available at that point of time.”  

43 In  the  practice  of  medicine,  there  could  be varying  approaches to  treatment.

There can be a genuine difference of opinion. However,  while adopting a course of

treatment,  the  medical  professional  must  ensure  that  it  is  not  unreasonable.  The

threshold to prove unreasonableness is set with due regard to the risks associated with

15 (2009) 3 SCC 1

21

medical treatment and the conditions under which medical professionals function. This

is to avoid a situation where doctors resort to ‘defensive medicine’ to avoid claims of

negligence,  often  to  the  detriment  of  the  patient.  Hence,  in  a  specific  case  where

unreasonableness  in  professional  conduct  has  been  proven  with  regard  to  the

circumstances of that case, a professional cannot escape liability for medical evidence

merely by relying on a body of professional opinion.  

44 In  the  present  case,  the  record  which  stares  in  the  face  of  the  adjudicating

authority establishes that between 7.30 am and 7 pm, the critical parameters of the

patient were not evaluated. The simple expedient of monitoring blood parameters was

not undergone. This was in contravention of WHO guidelines as well as the guidelines

prescribed by the Directorate of National Vector Borne Diseases Control Programme. It

was the finding of the Medical Council of India that while treatment was administered to

the patient according to these guidelines, the patient did not receive timely treatment. It

had accordingly administered a warning to the respondents to be more careful in the

future. In failing to provide medical treatment in accordance with medical guidelines, the

respondents failed to satisfy the standard of reasonable care as laid down in the Bolam

case and adopted by Indian Courts. To say that the patient or her family would have

resisted a blood test, as is urged by the respondents, is merely a conjecture. Since no

test was done, such an explanation cannot be accepted.

45 The NCDRC had before it a well-considered judgment of the SCDRC based on

the evidence on the record.   While the jurisdiction of an adjudicatory authority in a first

appeal is co-extensive with that of the original authority, the NCDRC has displaced the

findings  of  fact  which  have  been  arrived  at  by  the  SCDRC  without  any  cogent

reasoning.

22

46 The appellate authority has placed a considerable degree of reliance on the fact

that the patient was on aspirin. This circumstance was drawn to the attention of the

treating doctors at the time of admission. The NCDRC has merely observed that once

she was admitted to the hospital, the patient was given medicines. This, in our view, is

an insufficient basis to displace the findings of fact and conclusions recorded by the

SCDRC.

47 For the above reasons, we are of the view that the judgment of the NCDRC is

unsustainable.   There was no basis or justification to reverse the finding of  medical

negligence which was arrived at by the SCDRC.

48 However,  in  our  view,  there  is  no  basis  for  recording  a  finding  of  medical

negligence against the Director of the hospital.  The Director of the hospital was not the

treating doctor or the referring doctor.   Hence, while the finding of medical negligence

against  the  hospital  would  stand  confirmed,  the  second  respondent  would  not  be

personally liable.

49 That leads the Court to the question of damages. Finding the hospital and its

Director guilty of medical negligence, the SCDRC directed compensation in the amount

of Rs. 6 lakhs together with interest at 9 per cent.

50 While  quantifying the compensation,  the SCDRC was in  error  in  holding that

since the son and daughter of the appellant are “highly educated and working” and had

not  joined  as  complainants,  the  complainant  himself  would  be  entitled  to  receive

compensation only in the amount of Rs. 6 lakhs.

51 The complainant has lost his spouse, who was 56 years of age. Though she was

not  employed,  it  is  now well  settled by a catena of decisions of  this Court  that  the

23

contribution  made  by  a  non-working  spouse  to  the  welfare  of  the  family  has  an

economic equivalent.

52   In Lata Wadhwa v State of Bihar,16 a three judge Bench of this Court computed

damages to be paid to dependants of deceased persons  as well as burn victims in the

aftermath  of  a  fire  at  the  factory  premises.  The  Court  took  into  consideration  the

multifarious services rendered to the home by a home-maker and held the estimate

arrived at Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000 per

annum for the age group of 34 to 59 years.  

53    In Malay Kumar Ganguly v Sukumar Mukherjee,17 Justice S B Sinha held thus:  

“172. Loss  of  wife  to  a  husband  may  always  be  truly compensated  by  way  of  mandatory  compensation.  How  one would  do  it  has  been  baffling  the  court  for  a  long  time.  For compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do  when  she  had  been  earning.  Even  otherwise  a  wife's contribution  to  the  family  in  terms  of  money  can  always  be worked out. Every housewife makes a contribution to his family. It is  capable  of  being  measured  on  monetary  terms  although emotional aspect of it cannot be. It depends 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 the contribution is significant and

capable of being measured in monetary terms.

54 In assessing the amount of compensation, we have been guided by the principle

which has been laid down by the Constitution Bench in Lata Wadhwa and in National

Insurance  Company  Ltd.  v  Pranay  Sethi18 with  suitable  modifications  in  a  case

involving medical negligence.

55 In our view, the interests of justice would be met, if the amount of compensation

16 (2001) 8 SCC 197 17 (2009) 3 SCC 663 18 (2017) 13 SCALE 12

24

is enhanced. We accordingly, direct that the appellant shall be entitled to receive an

amount of Rs. 15 lakhs by way of compensation from the first respondent.

56 The compensation, as awarded, shall carry interest at the rate of 9 per cent per

annum from the date of the institution of the complaint before the SCDRC until payment

or realisation. Payment should be effected within two months.

57 The appeals are allowed in these terms. There shall be no order as to costs.

 …...............…...…………......………………........J.                                                                    [DR. DHANANJAYA Y CHANDRACHUD]   

 …...…...........................……………….…........J.                                                       [HEMANT GUPTA]     

New Delhi; January 9, 2019.

25

ITEM NO.4               COURT NO.11               SECTION XIV

              S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS

Special Leave Petition (C) Nos. 30119-30120 of 2016

ARUN KUMAR MANGLIK                                 Appellant(s)

                               VERSUS

CHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR.   Respondent(s)

 WITH SLP(C) Diary No. 44846 of 2018 (IA  No.174108/2018-CONDONATION  OF  DELAY  IN  FILING  and  IA No.174109/2018-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)   Date : 09-01-2019 These matters were called on for hearing today.

CORAM :           HON'BLE DR. JUSTICE D.Y. CHANDRACHUD          HON'BLE MR. JUSTICE HEMANT GUPTA

For Appellant(s) Mr. Brijender Chahar, Sr. Adv.

                   Mr. Birendra Kumar Mishra, AOR Mr. Shashi Bhushan, Adv. Ms. Poonam Atey, Adv.

                   For Respondent(s)                     Mr. Ankur Mittal, AOR

Mr. U.C. Mittal, Adv. Ms. Nidhi Mittal, Adv.

                              UPON hearing the counsel the Court made the following                              O R D E R

Delay condoned.

Leave granted.

The  appeals  are  allowed  in  terms  of  the  signed  reportable

judgment.

Pending application(s), if any, shall stand disposed of.

(MANISH SETHI)                                  (SAROJ KUMARI GAUR) COURT MASTER (SH)                                  BRANCH OFFICER

(Signed reportable judgment is placed on the file)