REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2024  of  2019 {Arising out of SLP(C) No.32721/2017}

VINOD JAIN ….Appellant

versus

SANTOKBA DURLABHJI  MEMORIAL HOSPITAL & ANR. ….Respondents

J U D G M E N T

SANJAY KISHAN KAUL, J.

1. Leave granted.

2. The sad demise of  the wife of  the appellant  on 31.10.2011 has

resulted in the legal proceedings being initiated by the appellant  on a

belief  that  the cause of her  death was medical  negligence.   The State

Consumer Disputes Redressal Commission, Rajasthan (for short ‘State

Commission’)  found  in  favour  of  the  appellant  vide  order  dated

11.5.2016,  but  the  said  order  was  upset  in  appeal  in  the  National

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Consumer  Disputes  Redressal  Commission,  New  Delhi  (for  short

‘NCDRC’)  vide  order  dated  1.8.2017.   We  are,  thus,  faced  with  the

present appeal.

3. Late  Mrs.  Sudha  Jain  was  the  wife  of  the  appellant,  who  was

suffering  from various  diseases  –  oesophageal cancer  (past  history  of

colon and breast cancer), hypertension and type 2 diabetes.  The occasion

to  be  admitted  to  respondent  No.1-Hospital  and  being  treated  by

respondent No.2-Doctor on 15.10.2011 was chills and fever as also for

re-insertion  of  nasal  feed  tube,  stated  to  be  dislodged  due  to  severe

dysphagia.  She was attended to by respondent No.2-Doctor for the chill

and  fever,  and  nasal  feed  tube  was  inserted  on  the  same day  by  Dr.

Anurag Govil, with some allied tests prescribed to be carried out.  One of

the  tests  was  a  Complete  Blood  Count  Report,  which found that  the

WBC count  was  high,  indicative  of  infection.   She  had also  running

temperature  of  104  degrees  Fahrenheit,  and  her  medical  treatment

commenced with intravenous administration of injection Magnex of 1.5

mg.   As  per  the  medical  reports,  the  cannula  used  for  intravenous

treatment stopped functioning and respondent No.2-Doctor prescribed a

further  antibiotic  tablet,  Polypod  (Cefpodoxime)  to  be  orally

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administered through the nasal tube.  The patient was discharged from

respondent No.1-Hospital on 18.10.2011, at which stage also her WBC

count was high and she was prescribed to continue taking her medicines

for a period of 5 days post discharge, which apparently was administered

to her, as per the appellant.

4. The appellant claimed that on 23.10.2011, his wife went into coma

and had to be admitted to a nearby Heart and General Hospital, where

she was put on life-support ventilation system.  The WBC count of the

wife of the appellant had risen even further and the systolic BP was only

40.   Her  health  continued  to  deteriorate  and  she  was  required  to  be

shifted to the Fortis Escorts Hospital, where she finally succumbed to her

illness on 31.10.2011.

5. The appellant, after the initial period of mourning, is stated to have

consulted various doctors, including his son, who is stated to be a doctor

practicing in USA.  It is his belief, on the basis of such discussion, that

the  respondents  were  guilty  of  medical  negligence  in  the  manner  in

which medical treatment was administered to his wife and her subsequent

discharge  from  respondent  No.1-Hospital.   The  appellant  filed  a

complaint  with  the  Medical  Council  of  Rajasthan,  a  statutory  body

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constituted under the Rajasthan Medical Act, 1952, but that endeavour

proved to be unsuccessful as no case of medical negligence was found in

the given facts of the case, in terms of the order passed on 13.7.2012.

The  process  of  coming  to  this  conclusion  included  the  response  of

respondent No.2-Doctor to a panel of eleven doctors, which scrutinised

the complaint and the material placed before the panel, by the appellant.

The further appeal of the appellant, before the Medical Council of India

was rejected as time barred on 8.3.2013.  The next legal journey of the

appellant  began  by  approaching  the  State  Commission,  by  filing  a

consumer complaint.  The appellant sought to make out a case of: (a)

inappropriate and ineffective medication; (b) failure to restart the cannula

for IV medication; (c) premature discharge of the deceased despite her

condition  warranting  treatment  in  the  ICU;  (d)  oral  administration  of

Polypod antibiotic, despite her critical condition, which actually required

intravenous administration of the medicine.

6. On the other hand, the stand of the respondents was that when the

patient was discharged, she was afebrile, her vitals were normal and she

was well-hydrated, with no infection in her chest or urinary tract.  She

was stated to be clinically stable from 15.10.2011 to 17.10.2011 and that

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is  why  she  was  so  discharged  on  18.10.2011,  with  proper  medical

prescriptions for the next 5 days.  However, the State Commission found

in favour of the appellant and directed a compensation of Rs.15 lakh and

costs of Rs.51,000/- to be paid to the appellant.  Aggrieved by the said

order  of  the  State  Commission,  the  respondents  preferred  an  appeal

before the NCDRC, which exonerated the respondents of any medical

negligence vide impugned order dated 1.8.2017.  It was opined that at the

highest, it could be termed as a case of wrong diagnosis and certainly not

one of medical negligence.

7. In order  to  appreciate  the  opinion of  the  NCDRC, it  would  be

appropriate to lay down the legal principles which would apply in cases

of medical negligence.

8. ‘Negligence’ has been defined in the Halsbury’s Laws of England,

4th Edn., Vol. 26 pp.17-18 and extracted in  Kusum Sharma & Ors. v.

Batra Hospital & Medical Research Centre & Ors.1 as under:

“22. Negligence. – Duties owed to patient. A person who holds himself  out  as  ready  to  give  medical  advice  or  treatment impliedly  undertakes  that  he  is  possessed  of  skill  and knowledge  for  the  purpose.  Such  a  person,  whether  he  is  a registered medical  practitioner or not,  who is consulted by a patient,  owes  him  certain  duties,  namely,  a  duty  of  care  in deciding  whether  to  undertake  the  case;  a  duty  of  care  in

1 (2010) 3 SCC 480

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deciding  what  treatment  to  give;  and  a  duty  of  care  in  his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient”

9. A fundamental aspect, which has to be kept in mind is that a doctor

cannot be said to be negligent if he is acting in accordance with a practice

accepted as proper by a reasonable body of medical men skilled in that

particular art, merely because there is a body of such opinion that takes a

contrary view (Bolam v. Friern Hospital Management Committee2).  In

the same opinion, it was emphasised that the test of negligence cannot be

the test of the man on the top of a Clapham omnibus.  In cases of medical

negligence, where a special skill or competence is attributed to a doctor,

a doctor need not possess the highest expert skill, at the risk of being

found negligent, and it would suffice if he exercises the ordinary skill of

an ordinary competent man exercising that particular art.   A situation,

thus,  cannot  be  countenanced,  which  would  be  a  disservice  to  the

community at large, by making doctors think more of their own safety

than of the good of their patients.

10. This  Court  in  another  judgment  in  Jacob  Mathew  v.  State  of

2 (1957) 1 WLR 582 :: (1957) 2 All ER 118

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Punjab3 dealt  with  the  law  of  negligence  in  respect  of  professionals

professing some special skills.  Thus, any individual approaching such a

skilled person would have a reasonable expectation of a degree of care

and caution, but there could be no assurance of the result.  A physician,

thus,  would  not  assure  a  full  recovery  in  every  case,  and  the  only

assurance given, by implication, is that he possesses the requisite skills in

the branch of the profession, and while undertaking the performance of

his task, he would exercise his skills with reasonable competence.  Thus,

a  liability  would  only  come,  if  (a)  either  the  person (doctor)  did  not

possess the requisite skills, which he professed to have possessed; or (b)

he did not exercise, with reasonable competence in a given case, the skill

which  he  did  possess.   It  was  held  not  to  be  necessary  for  every

professional to possess the highest level of expertise in that branch in

which he practices.  In the said opinion, a reference was,  once again,

made to the Halsbury’s Laws of England as under:

“To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional  man of  ordinary  skill  would  have  taken had he been acting with ordinary care.”

3 (2005) 6 SCC 1

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11. In Hucks v. Cole4, Lord Denning speaking for the Court observed

as under:

“A  medical  practitioner  was  not  to  be  held  liable  simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of  treatment  in  preference  of  another.  A medical  practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

12. In para 89 of the judgment in Kusum Sharma & Ors.5 the test had

been laid down as under:

“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

4 (1968) 118 New LJ 469 5 (supra)

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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  standard  so  far  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 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

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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 pressurizing 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.”

13. Now turning to the application of the aforesaid principles to the

facts at hand.  It is material to note that the respondent No.1-Hospital

promptly  attended  to  the  wife  of  the  appellant.   Respondent  No.2,

physician,  once  again,  attended  to  her  promptly,  and  started  her  on

antibiotic  treatment.   The  nasal  feed  tube  was  re-inserted  promptly.

However, in the early hours on the next day, on 16.10.2011, the cannula

stopped  functioning  and  instead  of  re-cannulating  the  patient,  oral

administration of the antibiotic Polypod was found justified.  It is this

aspect, which according to the appellant, amounts to medical negligence.

The explanation offered by respondent No.2-Doctor was that when he

attended the patient at 11:00 a.m. on 16.10.2011, he found that the drip

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had been disconnected, on account of all peripheral veins being blocked

due to past chemotherapies, and that the drip had been stopped, the night

before itself, at the instance of the appellant.  Taking into consideration

the fact that the patient was normal, afebrile, well-hydrated and displayed

normal vitals, the oral administration of the tablet was prescribed.  This,

according to the NCDRC was the professional and medical assessment

by respondent No.2-Doctor, arrived at on the basis of a medical condition

of the patient, and could not constitute medical negligence.

14. We  see  no  reason  to  differ  from  the  view  expressed  by  the

NCDRC,  keeping in  mind the  test  enunciated  aforesaid.   Respondent

No.2-Doctor,  who was expected to bring a reasonable degree of  skill,

knowledge and care, based on his assessment of the patient, prescribed

oral  administration  of  the  antibiotic  in  that  scenario,  especially  on

account  of  the  past  medical  treatments  of  the  wife  of  the  appellant,

because of which the veins for administration of IV could not be located.

Her physical condition was found to be one where the oral administration

of the drug was possible.

15. The appellant has also sought to make out a case that the blood

culture report required his wife to be kept in the hospital.  This was again

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a judgment best arrived at by respondent No.2-Doctor, based on her other

stable conditions, with only the WBC count being higher, which, as per

the  views  of  the  respondent  No.2-Doctor,  could  be  treated  by

administration of the antibiotic drug orally, which was prescribed for 5

days, and as per the appellant, was so administered.  In the perception of

the doctor, the increase in lymphocytes in the blood count was the result

of the patient displaying an improved immune response to the infection.

It  is  in  this  context  that  the NCDRC opined that  at  best,  it  could be

categorised as a possible case of wrong diagnosis.

16. In our opinion the approach adopted by the NCDRC cannot be said

to be faulty, while dealing with the role of the State Commission, which

granted damages on a premise that respondent No.2-Doctor could have

pursued an alternative mode of treatment.  Such a course of action, as a

super-appellate medical authority, could not have been performed by the

State  Commission.   There was no evidence  to  show any unexplained

deviation  from standard protocol.   It  is  also  relevant  to  note  that  the

deceased was medically compromised by the reason of her past illnesses.

The deceased was admitted to two other hospitals,  post  her  discharge

from  respondent  No.1-Hospital.  The  moot  point  was  whether  her

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admittance and discharge from respondent No.1-Hospital was the sole, or

even the most likely cause of her death.  The death had been caused by a

multiplicity of factors.  In the end, we may also note that the medical

certificate issued for the cause of death by Fortis Escorts Hospital cited

septic  shock due to  multiple  organ failure  as  the immediate  cause  of

death, with her diabetic condition being an antecedent cause, as also the

multiple  malignancies,  post  chemotherapy  and  radiotherapy  all

contributing to her passing away.

17. We appreciate the pain of  the appellant,  but  then,  that  by itself

cannot be a cause for awarding damages for the passing away of his wife.

We have sympathy for the appellant, but sympathy cannot translate into a

legal remedy.

18. We cannot fault the reasoning of the NCDRC.  Thus, the result is

that the appeal is dismissed, leaving the parties to bear their own costs.

..….….…………………….J. [L. Nageswara Rao]

...……………………………J. [Sanjay Kishan Kaul]

New Delhi. February 25, 2019.

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