Dr. S.K.Jhunjhunwala vs Mrs. Dhanwanti Kaur

Dr. S.K. Jhunjhunwala ….Appellant(s)

VERSUS

Mrs. Dhanwanti Kaur & Anr. …Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1. This appeal is directed against the final

judgment and order dated 01.09.2009 passed by

the National Consumer Disputes Redressal

Commission (hereinafter referred to as “the National

Commission”), at New Delhi in First Appeal No. 93 Signature Not Verified Digitally signed by ASHOK RAJ SINGH Date: 2019.04.06 of 2004 whereby the National Commission allowed 10:48:38 IST Reason: 1 the appeal filed by respondent No.1 and set aside

the order dated 19.01.2004 of the State

Commission, West Bengal, Kolkata in Complaint

Case No.698/O/1997.

2. In order to appreciate the issue involved in the

appeal, it is necessary to set out the relevant facts

hereinbelow.

3. The appellant was the opposite party No.1

whereas the respondent No.1 herein was the

complainant and respondent No.2 herein was the

opposite party No.2 in the complaint out of which

this appeal arises.

4. The appellant is a doctor by profession and is

practicing in Calcutta since 1969. He is a qualified

Surgeon having expertise, especially in gall bladder

surgery. He obtained his MBBS degree from

Banaras Hindu University in 1968 and thereafter

went to England and obtained FRCS degree in 1976.

2 He then worked for seven years in various hospitals

in England as a Surgeon and returned to India in

1978 and settled in Calcutta. He was a visiting

consultant to several Hospitals out of which one

was­Life Line Diagnostic Center and Nursing Home

(respondent No.2 herein) at Calcutta where he used

to perform operations on his patients.

5. Respondent No.1(complainant)­a lady, who, at

the relevant time, was residing in Calcutta felt pain

in her abdomen in June 1996. She, therefore,

consulted a local doctor but she did not get any

relief. Therefore, she consulted Dr. Lakshmi Basu

who, on examination, advised her to get some

medical tests done such as X­ray, PA Chest,

Ultrasound of upper abdomen Endoscopy, Blood

Tests etc. Respondent No.1, as advised, carried out

these medical tests. On examination of the reports

of respondent No.1, Dr. Basu opined that her Gall

3 Bladder had two calculi in its lumen and the same

could be cured only by operation. Dr. Basu

accordingly advised respondent No.1 to undergo

laparoscopic surgery from any good Surgeon and

suggested the name of the appellant.

6. Respondent No.1, as advised, consulted Dr.

S.K. Jhunjunwala­the appellant herein who, after

her examination and also her medical test reports,

agreed with the advise of Dr. Basu and accordingly

advised respondent No.1 for undergoing Surgery of

her Gall Bladder. The appellant also advised

respondent No.1 to get herself admitted in

respondent No.2’s Hospital for undergoing Surgery.

7. On 07.08.1996, respondent No.1 got herself

admitted in respondent No.2’s Hospital as an indoor

patient. On 08.08.1996 the appellant performed the

laparoscopy and after that open surgery and

removed the Gall Bladder of respondent No.1.

4 Respondent No.1 was in the hospital for about a

week or ten days for post­operative care and

thereafter she was discharged.

8. In December 1997, respondent No.1 filed a

complaint under Section 10 of the Consumer

Protection Act, 1986 (for short, “the Act”) against

the appellant (opposite party No.1) and respondent

No.2 (opposite party No.2) claiming compensation

for the loss, mental suffering and pain suffered by

her throughout after the surgery on account of

negligence of the appellant in performing the

surgery of her Gall Bladder on 08.08.1996.

Respondent No.1, in substance, complained that

firstly, she had never given her consent for

performing general Surgery of her Gall Bladder

rather she had given consent for performing

laparoscopy Surgery only but the appellant

performed general surgery of her Gall Bladder which

5 resulted in putting several stitches and scars on her

body, Secondly, even the surgery performed was

not successful inasmuch as respondent No.1

thereafter suffered for several days with various

ailments, such as dysentery, loss of appetite,

reduction of weight, jaundice etc., Thirdly, in June

1997, she was, therefore, required to undergo

another Surgery in Ganga Ram Hospital, Delhi for

removal of stones which had slipped in CBD. It was

alleged that all these ailments were incurred due to

the negligence of the appellant, who did not perform

the surgery properly and rather performed the

surgery carelessly leaving behind for respondent

No.1 only mental agony, pain, harassment and

money loss and hence she filed a complaint to claim

the reasonable amount of compensation under

various heads as mentioned above.

6

9. The appellant filed his reply and denied the

allegations made by respondent No.1 in her

complaint. In substance, the appellant stated in his

reply that he, after examining respondent No.1,

advised her to go for surgery of Gall Bladder, which

may even include removal of Gall Bladder. It was

stated that consent of respondent No.1 for

performing the laparoscopic cholecystectomy was

duly obtained before performing the surgery. The

appellant stated that after starting laparoscopic

surgery, he noticed swelling, inflammation and

adhesion on her Gall Bladder and, therefore, he

came out of the Operation Theater and disclosed

these facts to respondent No.1's husband and told

him that in such a situation it would not be possible

to perform laparoscopic surgery and only

conventional procedure of surgery is the option to

remove the malady. The husband of respondent

7 No.1 agreed for the option suggested by the

appellant and the appellant accordingly performed

conventional surgery. Respondent No.1 was

discharged after spending few days in the Hospital

for post­operative care. The appellant, therefore,

denied any kind of negligence or carelessness or

inefficiency on his part in performing the surgery on

respondent No.1 and stated that all kinds of

precautions to the best of his ability and capacity,

which were necessary to perform the surgery were

taken by him and by the team of doctors that

worked with him in all such operational cases.

10. Parties adduced affidavit evidence in support

of their respective cases set up in their pleadings.

The State Commission, by order dated 19.01.2004,

dismissed the complaint filed by respondent No.1

finding no merit therein. Respondent No.1 felt

8 aggrieved and filed appeal before the National

Commission.

11. By impugned order, the National Commission

allowed the appeal filed by respondent No.1 in part

and awarded a total compensation of Rs.2 lakhs to

be paid by the appellant to respondent No.1 on

account of negligence on his part in performing the

surgery which gives rise to filing of the present

appeal by way of special leave in this Court by the

appellant­Dr. S.K. Jhunjhnwala(opposite party

No.1).

12. The short question, which arises for

consideration in this case, is whether the National

Commission was justified in allowing respondent

No.1’s appeal and was, therefore, justified in holding

the appellant (opposite party No.1) negligent in

performing the Surgery of Gall Bladder of

respondent No.1 and, in consequence thereof, was

9 justified in awarding Rs.2 lakhs by way of

compensation to respondent No.1.

13. Heard Mr. Ateev Kumar Mathur, learned

counsel for the appellant and Mrs. Rupali Samanta

Ghosh, learned counsel for respondent No.1.

14. Having heard the learned counsel for the

parties and on perusal of the record of the case, we

are inclined to allow the appeal and while setting

aside the impugned order restore the order of the

State Commission for the following reasons.

15. Before we proceed to examine the facts of this

case, it is apposite to take note of legal principle

that governs the controversy involved in the appeal.

16. The question as to how and by which principle,

the Court should decide the issue of negligence of a

professional doctor and hold him liable for his

medical acts/advise given by him/her to his patient

which caused him/her some monetary loss, mental

10 and physical harassment, injury and suffering on

account of doctor’s medical advise/treatment (oral

or operation) is no longer res integra and settled

long back by the series of English decisions as well

as the decisions of this Court.

17. The classic exposition of law on this subject is

first laid down in a decision of Queens Bench in a

leading case of Bolam vs. Friern Hospital

Management Committee [1957]1WLR 582 = (1957)

2 All ER 118 (QBD).

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

the following words:

“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 well­established law that it is sufficient if he exercises the ordinary

11 skill of an ordinary competent man exercising that particular art”

19. The aforesaid principle of law was reiterated

and explained by Bingham L.J. in his speech in

Eckersley vs. Binnie (1988) 18 Con LR 1 in the

following words:

“From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.”

12

20. All along and till date, the law laid down in

Bolam’s case (supra) is consistently followed by all

the Courts all over the World including Indian

Courts as laying down the correct principle of law

on the subject. It is known as Bolam Test.

21. So far as this Court is concerned, a Three

Judge Bench in the case of Jacob Mathew vs. State

of Punjab [(2005) 6 SCC 1] examined this issue.

Chief Justice R.C. Lahoti, (as he then was) speaking

for the Bench extensively referred to the law laid

down in Bolam’s case (supra) and in Eckersley’s

case (supra) and placing reliance on these two

decisions observed in his distinctive style of writing

that the classical statement of law in Bolam’s case

(supra) has been widely accepted as decisive of the

standard of care required by both of professional

men generally and medical practitioner in particular

13 and it is invariably cited with approval before the

Courts in India and applied as a touchstone to test

the pleas of medical negligence.

22. It was held that a Physician would not assure

the patient of full recovery in every case. A surgeon

cannot and does not guarantee that the result of

surgery would invariably be beneficial, much less to

the extent of 100 % for the person operated on. The

only assurance which such a professional can give

or can be understood to have given by implication is

that he is possessed of the requisite skill in that

branch of profession which he is practicing and

while undertaking the performance of the task

entrusted to him he would be exercising his skill

with reasonable competence. This is what the entire

person approaching the professional can expect.

Judged by this standard, a professional may be held

liable for negligence on one of two findings: either he

14 was not possessed of the requisite skill which he

professed to have possessed, or, he did not exercise,

with reasonable competence in the given case, the

skill which he did possess.

23. It was further observed that the fact that a

defendant charged with negligence acted in accord

with the general and approved practice is enough to

clear him of the charge. It was held that 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. It was held that the standard to be

applied for judging whether the person charged has

been negligent or not would be that of an ordinary

competent person exercising ordinary skill in that

profession. It is not possible for every professional

to possess the highest level of expertise or skills in

that branch which he practices. His Lordship

15 quoted with approval the subtle observations of

Lord Denning made in Hucks vs. Cole (1968) 118

New LJ 469, namely, “a medical practitioner was

not 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 held liable only where his

conduct fell below that of the standards of a

reasonably competent practitioner in his field.”

24. In our view, the facts of the case at hand has

to be examined in the light of the aforesaid principle

of law with a view to find out as to whether the

appellant­a doctor by profession and who treated

respondent No.1 and performed surgery on her

could be held negligent in performing the general

surgery of her Gall Bladder on 08.08.1996.

16

25. It is not in dispute that the appellant is a

professionally trained doctor and has acquired the

post­graduate degree in the subject (FRCS) from

London way back in 1976 and worked there (UK) for

seven years and earned enough experience in the

field of surgery. It is also not in dispute that since

1976/1977, he has been in the field of surgery in

India till the date he performed operation of

respondent No.1 on 08.08.1996.

26. These undisputed facts, in our opinion, clearly

prove that the appellant is a qualified senior doctor

with an experience in the field and had also

possessed the requisite knowledge and skill in the

subject to perform the surgery of Gall Bladder.

27. It is also not in dispute that initially he

proceeded to perform the laparoscopy surgery of the

Gall Bladder of respondent No.1 as advised but

while so performing he noticed some inflammation,

17 adhesion and swelling on the Gall Bladder and,

therefore, decided to perform the conventional

surgery, which he actually did on respondent No.1,

to remove the Gall Bladder.

28. According to respondent No.1, the appellant

could not have done so because she had not given

her consent to him to perform this surgery on her.

In other words, according to respondent No.1, she

had given her express consent in writing to perform

only “laparoscopy surgery” but the appellant instead

of performing “laparoscopy surgery” proceeded to

perform conventional surgery and in that process

removed her Gall Bladder. It is due to this reason,

according to respondent No.1, a clear case of

negligence on the part of the appellant is made out

which entitles respondent No.1 to claim

compensation in terms of money.

18

29. The State Commission did not accept the

aforementioned submission of respondent No.1 but

this submission found favour to the National

Commission for holding the appellant guilty of

negligence in performance of his duty in performing

the surgery. We do not agree with the reasoning of

the National Commission on this issue for more

than one reason mentioned below.

30. First, clause 4 of the Consent Form dated

07.08.1996 at page 282 of the SLP paper book,

which is duly signed by respondent No.1, in clear

terms, empowers the performing doctor to perform

such additional operation or procedure including

the administration of a blood transfusion or blood

plasma as they or he may consider substitute

necessary or proper in the event of any emergency

or if any anticipated condition is discovered during

the course of the operation.

19

31. Second, in terms of clause 4 of the Consent

Form, the appellant was entitled to perform the

conventional surgery as a substitute to the former

one having noticed some abnormalities at the time

of performing Laparoscopy that it would not be

possible for the team of doctors attending

respondent No.1 to continue further with

laparoscopy of the Gall Bladder.

32. In other words, we are of the view that there

was no need to have another Consent Form to do

the conventional surgery in the light of

authorization contained in clause 4 itself because

the substitute operation was of a same organ for

which the former one was advised except with a

difference of another well known method known in

medical subject to get rid of the malady.

33. Third, there is an evidence on record and we

are inclined to accept the evidence that the

20 appellant having noticed while performing

laparoscopy that there was some inflammation,

adhesion and swelling on Gall Bladder, he came out

of operation theater and informed respondent No.1's

husband who was sitting outside the operation

theater about what the condition of respondent

No.1's gall bladder and sought his consent to

perform the substitute operation. It is only after the

consent given by the husband of respondent No.1,

the appellant proceeded to do conventional surgery.

34. In our opinion, there is no reason to disbelieve

this fact stated by the appellant in his evidence. It

is, in our opinion, a natural conduct and the

behavior of any prudent doctor, who is performing

the operation to apprise the attending persons of

what he noticed in the patient and then go ahead

accordingly to complete the operation.

21

35. It is not the case of respondent No.1 that her

husband was neither present in the hospital on that

day nor he was not sitting outside the Operation

Theater and nor he ever met the appellant on that

day.

36. In our opinion, a clear case of grant of consent

to the appellant to perform the substituted

operation of Gall Bladder of respondent No.1 was,

therefore, made out to enable the appellant to

perform the conventional surgery, which he actually

performed.

37. The National Commission while recording the

finding on the issue of consent against the appellant

relied upon the decision of this Court in the case of

Samira Kohli vs. Dr. Prabha Manchanda & Anr.

(2008) 2 SCC 1. In our view, the said decision itself

has made an exception to the cases observing in

para 49 of the judgment which reads as under: 22

“ “The only exception to this rule is where the additional procedure though unauthorised, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorised procedure until patient regains consciousness and takes a decision.”

38. In our opinion, the case of the appellant also

falls in the excepted category mentioned by this

Court because the appellant having noticed the

abnormalities in the Gall Bladder while performing

laparoscopy surgery proceeded to perform the

conventional surgery and that too after obtaining

fresh consent of respondent No.1’s husband. In

other words, it was not an unauthorized act of the

appellant and he could legally perform on the basis

of original consent (clause 4) of respondent No.1 as

also on the basis of the further consent given by the

respondent No.1’s husband.

23

39. That apart, we also find that respondent No.1

never raised the objection of “consent issue” to the

appellant or/and opposite party respondent No.2 ­

Hospital and it was for the first time in the

complaint, she raised this issue and made a

foundation to claim compensation from the

appellant. Nothing prevented her or her husband to

raise the issue of consent immediately after

performance the surgery while she was in hospital

as an indoor patient and even after discharge that

being the natural conduct of any patient. It was,

however, not done.

40. It is not in dispute that respondent No.1 failed

to prove any specific kind of negligence of the

appellant while performing the operation or/and

thereafter. Indeed, even the National Commission

in Para 18 held this issue in favour of the appellant

in following words:

24

“18. Yet another grievance of the complainant is that she was not treated with care during her hospitalization from 07.08.96 to 18.08.96. No specific instances which can amount to carelessness or negligence on the part of the surgeon or the nursing home have been brought on record and, therefore, we are unable to hold that there was any lack of care amounting to negligence during her stay in the nursing home for which either the surgeon or nursing home can be made liable.”

41. Likewise the National Commission further held

in favour of the appellant in para 19 that the stones,

which were removed in the second operation at

Ganga Ram Hospital after 11 months (04.06.1997)

were the same which were noticed by the appellant

while performing the first surgery on 08.08.1996

and remained inside. In other words, respondent

No.1 failed to prove with the aid of any medical

evidence that the stones, which were noticed in the

second surgery performed after 11 months, were the

same stones which the appellant failed to remove

from the Gall Bladder. It is apposite to note the

25 finding of the National Commission in para 19

hereinbelow.

“………We have already found that from the material placed on record that it is not possible to hold with certainty that any of the calculi which were removed from the bile duct of the complainant at Sir Ganga Ram Hospital was the same for which she had undergone Cholecystectomy at the hands of the surgeon and, therefore, the only lapse which we can find on the part of the surgeon is that he did not care to bestow the kind of attention which the problem of complainant required when she consulted him after the procedure of Cholecystectomy, more particularly during April­May 1997……….”

42. Had it been so, the appellant could be held

liable for failure on his part to remove the stones

and allowed them to remain in the Gall Bladder for

such a long time. There was no medical evidence

adduced by respondent No.1 to prove this fact.

43. In our opinion, no medical evidence of any

expert was adduced by respondent No.1 to prove

any specific kind of negligence on the part of the

appellant in performing the surgery (conventional

26 surgery) of Gall Bladder except raising the issue of

“non­giving of express consent”. This issue we have

already dealt with above and found no merit

therein. In our view, respondent No.1 was under

legal obligation to prove a specific kind of negligence

on the part of the appellant in performing the

surgery and also was required to prove that any

subsequent ailment which she suffered on her

return to home such as, jaundice, dysentery, fever,

loss of weight etc. were suffered by her only due to

improper performance of conventional surgery by

the appellant and if the surgery had been

successful, she would not have suffered any kind of

these ailments.

44. In our opinion, there has to be a direct nexus

with these two factors to sue a doctor for his

negligence. Suffering of ailment by the patient after

surgery is one thing. It may be due to myriad

27 reasons known in medical jurisprudence. Whereas

suffering of any such ailment as a result of

improper performance of the surgery and that too

with the degree of negligence on the part of Doctor

is another thing. To prove the case of negligence of

a doctor, the medical evidence of experts in field to

prove the latter is required. Simply proving the

former is not sufficient.

45. In our considered opinion, respondent No. 1

was not able to prove that the ailments which she

suffered after she returned home from the Hospital

on 08.08.1996 were as a result of faulty surgery

performed by the appellant.

46. Learned counsel for respondent No.1

(complainant) vehemently argued that respondent

No.1 suffered immensely due to the surgery

performed by the appellant and that she was

28 rightly, therefore, awarded the compensation by the

National Commission.

47. Learned counsel for respondent No.1 also

placed reliance on the Discharge Certificate which,

according to her, mentions that Laparoscopy

surgery was performed on respondent No.1. On this

basis, learned counsel contended that respondent

No.1 had not given her consent for performing

general surgery.

48. In the light of the detailed discussion made

above on the issues arising in the case including the

issue of grant of consent, we are unable to accept

the aforesaid submissions of learned counsel for

respondent No.1.

49. It is apt to remember the words of the then

Chief Justice of India when he said in Jacob

Mathew’s case (supra) which reads as under:

“The subject of negligence in the context of medical profession necessarily calls for

29 treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and

30 medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in­depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”

50. In the light of what we have held above, we

cannot concur with the reasoning and the

conclusion arrived at by the National Commission.

As a consequence, the appeal succeeds and is

accordingly allowed. The impugned order is set

aside and that of the order passed by the State

Commission is restored.

…...……..................................J. [ABHAY MANOHAR SAPRE]

………...................................J. [VINEET SARAN] New Delhi;

October 01, 2018

31