Ins. Malhotra vs A. Kirplani & Ors

Ms. Ins. Malhotra ..... Appellant

Versus

Dr. A. Kriplani & Ors. ..... Respondents

JUDGMENT

Lokeshwar Singh Panta, J.

1] This appeal arises out of order dated 15.09.2000 of the

National Consumer Disputes Redressal Commission

(hereinafter referred as the "Commission") in Original Petition

No. 265 of 1992, whereby a complaint filed by

Ms. Ins. Malhotra-complainant has been dismissed.

2] Brief facts leading to the filing of this appeal are as

follows:

2.1] The complainant-appellant herein is the sister of Priya

Malhotra who died on 24.08.1989 in Bombay Hospital-

respondent no. 7 herein. In May, 1989 Priya Malhotra 2

complained of burning sensation in stomach, vomiting and

diarrhea. On 13.07.1989, her family doctor Dr. P. H. Joshi

advised to get the patient admitted to Bombay Hospital for

investigation and treatment under the care of

Dr. Ramamoorthy. On 14.07.1989, Priya Malhotra was

admitted to the Bombay Hospital, but on that day

Dr. Ramamoorthy was out of station and in his absence Dr.

Chaubal examined Priya Malhotra and prescribed to undergo

several tests. Priya Malhotra was diagnosed as having Koch's

of abdomen.

2.2] On 16/17.07.1989, Dr. Jain suspecting kidney problem

referred Priya Malhotra to Dr. A.Kriplani, a Nephrologist. On

18.07.1989, Dr. A. Kriplani informed appellant that Priya

Malhotra had kidney failure and chronic renal failure. The

appellant consented for immediate Haemodialysis as was

recommended by the doctor to save Priya Malhotra's life. In

spite of Heamodialysis, Priya Malhotra continued to have

vomiting and diarrhea and the same went out of control.

Dr. A. Kriplani directed performance of Ba-meal and Ba-

enema tests suspecting Koch's of abdomen and the two tests 3

conformed dilated loops of small intestine. Dr. Vasant S.

Sheth carried out ascetic tapping. On 22.07.1989,

Dr. A. Kriplani advised Peritoneoscopy for confirming Koch's of

abdomen. On the same day, on the recommendation of Dr.

Vasant S. Sheth and Dr. A. Kriplani, ultrasonography of upper

abdomen was performed on Priya Malhotra for confirmation of

Koch's of abdomen. On 31.07.1989, Dr. Vasant S. Sheth

performed ascetic tapping on Priya Malhotra and the diagnosis

made from Histopathologist was confirmation of Koch's

abdomen (anti malignant). Dr. A. Kriplani prescribed

Streptomycin injection with other medicines. The two reports

of M.D. (Pathologist) and Dr. Arun Chitale dated 01.08.1989

would show no T.B. organism in Peritoneal Fluid. On

03.08.1989, Dr. A. Kriplani advised CT scan for confirmation

of T.B. lower abdomen. Priya Malhotra vomited and could not

be controlled even by giving I.V.C.C Perinorm injection. On

06.08.1989, chest X-ray taken by X-ray Department of the

Bombay Hospital showed lung and pleura normal.

2.3] On 08.08.1989, Dr. Vasant S. Sheth and Dr. [Mrs.] S. R.

Jahagirdar examined Priya Malhotra and advised laparoscopy. 4

The operation was to be performed by Dr. [Mrs.] S. R.

Jahagirdar on 09.08.1989. Four bottles of blood were given to

Priya Malhotra during diagnosis. Liver profile and renal

profile tests were performed. Liver profile showed `Australia

Antigen' positive and renal profile showed low serum sodium

and serum potassium. On 09.08.1989, Dr. Pramod came at

about 3:00 a.m. and removed Femoral Cath. On

that day, Priya Malhotra was having high fever. On the same

day, Dr. [Mrs.] S. R. Jahagirdar, could not attend the hospital

and in her absence Dr. Pratima Prasad performed

Laparoscopy when Dr. A. Kriplani, Dr. Vasant S.

Sheth and Dr. S. Gupta were also present in the O.T.

2.4) After the operation, Priya Malhotra was removed to the

recovery room where she allegedly told the appellant by

gestures that she was having severe pain in the chest and she

was speechless and having breathing difficulty.

Dr. A. Kriplani observed that there was no need to worry and

Priya Malhotra would be kept in I.C.U for two days under

observation. On 12.08.1989, Priya Malhotra was shifted to 3rd

floor of the hospital. According to the appellant, Priya 5

Malhotra started becoming semi-conscious and erratic in

behaviour. On 20.08.1989, Priya Malhotra developed

intestinal fistula leading to her throwing out liquid from her

body and she developed serious infections septicemia.

On 22.08.1989, Priya Malhotra became deep unconscious and

she passed no urine and her face was swollen.

On 23.08.1989, Dr. A. Kriplani advised Haemodialysis and

Pneumothorax. Unfortunately, on 24.08.1989 at about

9:15 a.m., Priya Malhotra expired. On the same day, post-

mortem upon the dead body of Priya Malhotra was conducted

at J.J. Hospital, Bombay. The post-mortem report revealed the

cause of death was due to Peritonitis with renal failure.

2.5) The appellant filed police complaint against the doctors

of Bombay Hospital in Azad Maidan Police Station, Bombay.

In the year 1990, complaint was also filed before the

Maharashtra Medical Council.

2.6) On 02.07.1992, written complaint was sent by post to

the National Consumer Disputes Redressal Commission,

which was registered as Complaint No. 265 of 1992 against

Dr. A. Kriplani, Dr. [Mrs.] Pratima Prasad, Dr. S. Gupte, 6

Dr. Singhania, Dr. [Mrs.] S. R. Jahagirdar and Dr. Sachdeva.

On notice, the respondents entered appearance and filed their

separate written statements. The Bombay Hospital initially

was not a party in the complaint. An application for

impleadment of Bombay Hospital as party respondent no. 7

was allowed by the Commission in the year 1996.

3) During the course of the proceedings before the

Commission, the appellant was granted opportunity to

produce written opinion of expert doctors in support of her

allegations made in the complaint against the named doctors

and Bombay Hospital for their medical negligence or lack of

proper medical treatment to deceased Priya Malhotra. The

appellant could not lead the evidence of any expert doctor in

support of her complaint and she pleaded before the

Commission that no expert doctor was willing to give an

opinion against the doctors of Bombay Hospital though,

according to her, unofficially some doctors had expressed an

opinion that injustice had been done to deceased Priya

Malhotra. The appellant was issued notice to appear on

09.07.2000 for recording of her cross-examination. The 7

counsel for the respondents stated before the Commission

that they did not intend to cross-examine the appellant. None

of the respondent had appeared as witness in support of his

or her defence, as pleaded in the written statement.

3.1) On consideration of the entire material on record, the

Commission vide its order dated 15.09.2000 dismissed the

complaint of the appellant holding that the complainant has

not been able to establish a case of medical negligence against

the respondents.

4) Being aggrieved thereby, the appellant has filed this

appeal under Section 23 of the Consumer Disputes Redressal

Commission Act, 1986 (hereinafter referred to as the "Act").

5) We have heard learned counsel for the parties, who have

taken us through the order of the Commission and other

relevant materials brought on record.

6) The learned counsel appearing for the appellant

contended that the order of the Commission is bad on facts

and in law as the same is passed without proper appreciation

of the evidence of the appellant made in examination-in-chief

before the Commission which has gone unrebutted and 8

uncontroverted as she has not been cross-examined by the

respondents. He next contended that none of the respondents

have appeared for cross-examination before the Commission

nor any one of them has filed evidence on affidavit as

prescribed under Section 13 (4) (iii) of the Consumer

Protection Act, 1986 which prescribed procedure on

admission of complaint before the District Forum. The

learned counsel also contended that the appellant, despite her

sincere efforts, could not get the assistance of expert doctors

in support of her complaint and to dislodge the claim of the

respondents, the Commission in the interest of the appellant

could have on its own summoned expert doctors from some

Government institutions at Delhi to ascertain whether proper

and necessary medical treatment was given by the doctors to

Priya Malhotra or the doctors of Bombay Hospital in discharge

and performance of their duties were, in any manner,

negligent and careless.

6.1) In support of his submission reliance is placed upon a

decision of this Court in Civil Appeal No. 3541 of 2002 titled

Martin F. D'Souza v. Mohd. Ishfaq decided on 17.02.2009. 9

In the said case, the Division Bench of this Court has passed

some directions, which read as under:-

"We, therefore, direct that whenever a complaint is received against a doctor or hospital by the Consumer Forum (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital. This is necessary to avoid harassment to doctors who may not be ultimately found to be negligent. We further warn the police officials not to arrest or harass doctors unless the facts clearly come within the parameters laid down in Jacob Mathew's case (supra), otherwise the policemen will themselves have to face legal action."

7) Mr. Shyam Diwan, Senior Advocate appearing on behalf

of Dr. Kriplani, has canvassed correctness of the views taken

by the Commission in the impugned order. He submitted that

the approach of the Commission in appreciating the

consequences of the complaint and the defence of the doctors

taken in their written statements can never be found faulty.

He then contended that the evidence of the appellant in 10

examination-in-chief does not establish that Dr. A. Kriplani

was ever negligent in performing his duties in his discipline.

He contended that the treatment which was adopted by the

doctors was inconformity with the advice and opinion of

Dr. P.H Joshi and Dr. Ramamoorthy and the appellant has

not proved on record that there was any kind of disagreement

or divergence of opinion between Dr. A. Kriplani on the one

hand and Dr. P.H. Joshi on the other hand. The learned

counsel for other respondents has adopted the arguments

advanced by Mr. Shyam Diwan, Senior Advocate appearing for

Dr. A. Kriplani.

8) In order to appreciate the rival contentions of the learned

counsel for the parties, we have examined the impugned order

of the Commission and the evidence led by the parties. The

Commission in its order has noticed the decision of

Maharashtra Medical Council dated 13.05.1999, whereby the

Registrar of the Council conveyed that the Maharashtra

Medical Council after discussion on the merits and demerits of

the case unanimously resolved that `there is no negligence on

the part of medical practitioners and they have managed the 11

case to the best of their ability, therefore, it was unanimously

resolved to drop the said inquiry and the medical practitioners

be exonerated.'

9) The order of the Commission would reveal that

Dr. P.H Joshi had made noting on 26.07.1989 which reads

"Laparoscopy SOS shall review later" while referring the case

of Priya Malhotra to Dr. S.R. Jahagirdar who at the relevant

time was in-charge of Department of Obstetries and

Gynaecology of the Bombay Hospital. The appellant had no

complaint to make against Dr. P.H. Joshi, rather she had got

full faith in him. As noticed above, Dr. S.R. Jahagirdar was

out of town on the day when the patient was to be operated

upon and in her absence Priya Malhotra was examined by Dr.

Pratima Prasad and she has filed written statement before the

Commission in which it has categorically been stated that on

perusal of the case papers, she noticed that the patient was

referred to her because of suspected "Tubercular Peritonitis"

of the lower abdomen and "renal failure". On examination of

Priya Malhotra, Dr. Pratima Prasad noticed that the patient

was not getting menstruation for the last three months 12

although before that period, her menstruation periods were

stated to be normal. After clinical examination, Dr. Pratima

Prasad advised Ultrasonograph of the pelvis and laparoscopy

to confirm the existence of tuberculosis of the gynaecological

parts. Dr. Pratima Prasad stated that laparoscopy was

considered necessary for confirmation of the diagnosis of

tuberculosis of the abdomen and to get the histopathological

report. She stated that in the presence of Dr. Vasant V. Sheth

laparoscopy was done. The laparoscopy was not contra-

indicated from the various investigation reports and check-

ups carried out on the patient prior to 09.08.1989. The

Commission has in its order extracted the necessary

averments made by Dr. Pratima Prasad in her written

statement in regard to the procedure and method of

conducting laparoscopy which, in our view, are not necessary

to be repeated in this judgment for unnecessarily burdening

the record. The record produced before the Commission

would show that in the operation theatre, the patient was

jointly examined by Dr. A. Kriplani and Dr. S.R. Gupte, Hon.

Anaesthesiologist and they had taken conscious decision that 13

the laparoscopy was not contra-indicated in any way.

Dr. Pratima Prasad felt that an attempt to conduct

laparoscopy had to be abandoned and it became necessary to

perform the laparotomy to get tissue for biopsy which was the

main and only objective of the investigation. In the process,

the perforations caused during laparoscopy were duly

sutured. On opening the abdomen, it was noticed that the

patient had active military tuberculosis. Peritoneum and all

the abdominal structures were adhered together. It was also

noticed that the intestines were perforated due to introduction

of laparoscopy trocar and cannula. It was stated by

Dr. Pratima Prasad that Dr. Vasant V. Sheth performed the

peritoneal biopsy and sutured six intestinal perforations. The

laparotomy was performed with complete success and did not

create any complication to the patient. Dr. Pratima Prasad

also submitted in her statement that it was conclusively

proved by the post-mortem examination that the sutured

intestines had healed and had not developed any leak.

10) Dr. Pratima Prasad has strongly refuted the allegation

made by the appellant that Tubercular Peritonitis had 14

developed due to laparoscopy. She stated that Tubercular

Peritonitis is a chronic disease which could not suddenly

develop. It was already present when laparoscopy was

conducted. Dr. Pratima Prasad also stated in the written

statement that the allegations of the appellant that there was

a departure from the line of action taken by Dr. P.H. Joshi and

Dr. Ramamoorthy, were wholly untrue. She stated that in

fact, a perusal of the case papers would show that Dr. P.H.

Joshi had himself suggested laparoscopy on the patient. It

was her statement that medical opinion was clear that

tuberculosis of intestines could be detected best and easily by

performing laparoscopy. The allegations of the appellant that

the right lung of Priya Malhotra was collapsed due to the

laparoscopy has empathetically been denied by her.

Dr. Pratima Prasad pleaded that during laparoscopy the

direction of the trocar and cannula were towards pelvis

(downward direction) eliminating any chance of causing

pneumothorax or collapse of the lung. The appellant could

not lead evidence of any expert doctor to counter or rebut the 15

statement made by Dr. Pratima Prasad in her written

statement.

11) In the light of the unrebutted and uncontroverted

statement of Dr. Pratima Prasad, the Commission, in our view,

has rightly come to the conclusion that the appellant has

failed to establish that Dr. Pratima Prasad, in any manner,

was negligent or careless in performing laparoscopy upon the

deceased.

12) The appellant also alleged that Dr. A. Kriplani and his

team of doctors had discarded the line of treatment being

pursued by Dr. Ramamoorthy and Dr. P.H. Joshi, which had

resulted in the death of Priya Malhotra. The appellant could

not even remotely substantiate this allegation made against

Dr. A. Kriplani. There is not an iota of evidence on record to

prove that Dr. A. Kriplani had ever departed from the line of

treatment being taken and adopted by Dr. Ramamoorthy and

Dr. P.H. Joshi. The appellant has clearly and unequivocally

stated that she had no complaint against the line of treatment

being advised by Dr. P.H. Joshi. It was categorically stated by

Dr. Pratima Prasad and Dr. A. Kriplani in their respective 16

written statements that it was Dr. P.H. Joshi who had in

writing recommended laparoscopy and the said

recommendation was placed on record of the Commission by

Dr. Pratima Prasad in support of her written statement. The

doctors-respondents who were involved in the treatment of

deceased Priya Malhotra have established on record that the

course of treatment pursued by them in the Bombay Hospital

was in no way contradictory or against the treatment given by

Dr. Ramamoorthy. In fact, Dr. Ramamoorthy had examined

the patient and carried the investigation as a result thereof it

was found that the patient was suffering from chronic renal

failure. Dr. Ramamoorthy requested Dr. A. Kriplani-

respondent no.1 for an opinion recorded as "Unit Note" dated

16.07.1989, a copy thereof has been produced before the

Commission duly signed by Dr. Ramamoorthy. The contents

of the "Unit Note" are extracted by the Commission in its

order.

13) Dr. Vasant S. Sheth of Bombay Hospital for the first time

examined Priya Malhotra on 24.07.1989 and found the patient

suffering from kidney failure. Dr. Vasant S. Sheth was 17

informed that the patient had been undergoing haemodialysis

since about 18.07.1989. On 21.07.1989, on clinical

examination and going through the reports of the investigation

conducted till that day, it was found that the patient was

suffering from end-stage renal failure and would require

kidney transplant for her survival. When various tests were

carried out, Dr. A. Kriplani suspected the patient to be

suffering from abdominal tuberculosis. In view of the

suffering from abdominal tuberculosis and also of the

gastrointestinal problems which had gone out of proportion to

the Uremia, the expert doctors-respondents had decided not

to carry out any operation for kidney transplant. Dr. A.

Kriplani and Dr. Vasant S. Sheth both had agreed that it

would not be advisable to carry out kidney transplant, having

regard to the state of health of the patient. The position of the

patient was fully explained by Dr. Vasant S. Sheth to the

patient and the appellant and both of them were informed that

renal failure cases stood surgery bodily and were likely to

develop complications following minor surgery and might even

result in death. On 31.07.1989, Dr. Vasant S. Sheth 18

performed diagnostic peritoneal tap for ascetic fluid

examination and also to judge whether laparoscopy would be

safe or not. Having regard to the various problems of the

patient and also the pathological and other reports of the

patient, Dr. A. Kriplani and his colleagues came to the

conclusion that there was no better method available for the

patient than to perform laparoscopy. Dr. Ramamoorthy also

examined patient on 04.08.1989 and approved the decision of

Dr. A. Kriplani to start anti-tuberculosis drugs and advised

administration of rifampicin/pyrazinamide. Dr. Ramamoorthy

had also insisted upon decision to do histopathological tissue

diagnosis to confirm existence of tuberculosis.

14) Dr. [Mrs.] S.R. Jahagirdar-respondent stated that Priya

Malhotra was admitted to Bombay Hospital under the

observation of Dr. Ramamoorthy and was later being treated

by Dr. A. Kriplani who referred the patient to her for

laparoscopy. It was Dr. Vasant S. Sheth who on or about

08.09.1989 contacted her on telephone and gave her the

details of the complications of Priya Malhotra. Dr. S. R.

Jahagirdar stated that Dr. [Mrs.] Pratima Prasad who had 19

special training to perform tissue biopsy by laparoscopy was

assigned the job. Dr. A. Kriplani is a Nephrologist, who at the

relevant time was the In-charge of the Nephrology Unit of the

Bombay Hospital. Dr. Vasant S. Sheth is the General

Surgeon, who is specialized in kidney transplant surgery.

Dr. Vasant S. Sheth had to do laparotomy on Priya Malhotra

after having supervised laparoscopy conducted by Dr. [Mrs.]

Pratima Prasad. On 21.07.1989, the patient was referred by

Dr. Ramamoorthy to Dr. A. Kriplani and Dr. Vasant S. Sheth.

On detailed clinical examination and going through the

records of the investigation done upto 21.07.1989, Dr. Vasant

S. Sheth came to the conclusion that patient was at the end-

stage of renal failure and as such she needed kidney

transplant for her survival as after multiple sessions of

haemodialysis the abdomen did not settle down and also

because of occurrence of recurrent features of intestinal

obstruction, it was decided not to have surgical intervention in

the case of the patient. Dr. Vasant S. Sheth agreed to the

opinion given by two doctors namely, Dr. A. Kriplani and

Dr. Ramamoorthy that the issue of kidney transplantation did 20

not arise till abdominal tuberculosis would get healed

completely.

15) On re-examination and re-appraisal of the entire material

on record, we find that there was absolutely no difference or

divergence of opinion between a team of specialists and

experts consisting of Dr. Ramamoothy, Dr. P.H. Joshi and

Dr. A. Kriplani at any stage about the method and mode of

treatment adopted by doctors-respondents in this case.

Doctors had informed the patient and her relatives well in

time that condition of Priya Malhotra was critical and kidney

transplantation could not be done nearly for one year and also

the consequence of the renal failure suffered by the patient.

Dr. Vasant S. Sheth had opined that attempt to do

laparoscopy had failed in spite of two attempts and it became

all the more important to perform laparotomy to get tissue for

biopsy and to avoid any further injury that might have

occurred due to the attempt at laparoscopy. On opening

abdomen of the patient it became clear that the patient had

extensive chronic peritonitis plastering the whole intestinal

tract and intestines were perforated due to introduction of 21

laparoscopic pressure and cannula. Dr. Vasant S. Sheth

performed peritoneal biopsy and sutured six intestinal

perforations to start with. The patient was put in I.C.U and at

the initial stages she was doing well but unfortunately on

17.08.1989 i.e. eight days after the operation she developed

jaundice probably due to anti-tuberculosis drugs which had to

be stopped. The material on record would show that on

20.08.1989, the patient developed a fluid leak from the

abdomen due to the leakage of ascites or beginning of fecal

fistula. The condition of Priya Malhotra started deteriorating

day by day despite best care and attention of specialists in

I.C.U. The appellant was kept fully informed about the

deteriorating condition of the patient, but the appellant

abruptly instructed the doctors to stop haemodialysis

treatment to the patient. Because of the persisting demand of

the appellant, haemodialysis was stopped which according to

the respondents resulted in the untimely death of Priya

Malhotra. Exhibit-C which was part of the continuation sheet

of treatment of Medical Research Centre of Bombay Hospital

placed on record of the Commission would reveal that on 22

23.08.1989 at 9.00 p.m., the patient was examined and it was

also recorded thereon "discussed with relatives and explained

the consequences of not draining of pneumothorax and not

doing haemodialysis". The appellant did not permit such

treatment and gave in writing "I refused Haemodialysis and

Pneumothorax on my risk".

16) In the facts and circumstances noticed hereinabove, the

fact remains that when Priya Malhotra was brought to

Bombay Hospital for treatment her health was in very bad

condition. Renal failure had already taken place. In the post

mortem report conducted at J.J. Hospital, Bombay, it finds

recorded that "patient was sick since four months by loose

motion, vomiting and she was admitted in Bombay Hospital

since 14.07.1989. She was operated on 09.08.1989 and died

on 24.08.1989. The cause of death was due to peritonitis with

renal failure".

17) In the backdrop of the factual situation of the present

case, we have examined the principles of law laid down by this

Court in the decisions cited by the learned counsel. 23

18) A three Judge Bench of this Court in the case of Jacob

Mathew v. State of Punjab and Another [(2005) 6 SSC 1]

had the occasion to deal with and decide the liability of

doctors in a death case arising due to criminal medical

negligence for an offence under Section 304-A of the Indian

Penal Code, 1860. In the case of professional negligence, it

was observed that in the law of negligence, professionals such

as lawyers, doctors, architects and others are included in the

category of persons professing some special skill or as skilled

persons generally. Any task which is required to be performed

with a special skill would generally be admitted or undertaken

to be performed only if the person possesses the requisite skill

for performing that task. Any reasonable man entering into a

profession which requires a particular level of learning to be

called a professional of that branch, impliedly assures the

person dealing with him that the skill which he professes to

possess shall be exercised with reasonable degree of care and

caution. He does not assure his client of the result. A

physician would not assure the patient of full recovery in every

case. A surgeon cannot and does not guarantee that the result 24

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 practising and while undertaking the performance

of the task entrusted to him he would be exercising his skill

with reasonable competence. This is all what the person

approaching the professional can expect. Judged by this

standard, the professional may be held liable for negligence on

one of two findings: either he 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. 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. A highly

skilled professional may be possessed of better qualities, but 25

that cannot be made the basis or the yardstick for judging the

performance of the professional proceeded against on

indictment of negligence. [Paras 18 and 48(3)]

18.1) In the case of medical negligence, it has been held that

the subject of negligence in the context of medical profession

necessarily calls for treatment with a difference. There is a

marked tendency to look for a human actor to blame for an

untoward event, a tendency which is closely linked with the

desire to punish. Things have gone wrong and, therefore,

somebody must be found to answer for it. An empirical study

would reveal that the 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 26

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 the 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 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 in-depth 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.

27

18.2) Negligence in the context of the medical profession

necessarily calls for a treatment with a difference. To infer

rashness or negligence on the part of a professional, in

particular a doctor, additional considerations apply. A case of

occupational negligence is different from one of professional

negligence. A simple lack of care, an error of judgment or an

accident, is not proof of negligence on the part of a medical

professional. So long as a doctor follows a practice acceptable

to the medical profession of that day, he cannot be held liable

for negligence merely because a better alternative course or

method of treatment was also available or simply because a

more skilled doctor would not have chosen to follow or resort

to that practice or procedure which the accused followed. The

classical statement of law in Bolam's case, (1957) 2 AII ER

118, at p. 121 D-F [set out in para 19 herein] has been widely

accepted as decisive of the standard of care required both of

professional men generally and medical practitioners in

particular, and holds good in its applicability in India. 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 28

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. It is not

necessary for every professional to possess the highest level of

expertise in that branch which he practices. Three 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 (that is, the time of the incident) on which

it is suggested as should have been used. Thirdly, when it

comes to the failure of taking precautions, what has to be seen

is whether those precautions were taken which the ordinary

experience of men has found to be sufficient; a failure to use

special or extraordinary precautions which might have

prevented the particular happening cannot be the standard for 29

judging the alleged negligence. [Paras 48 (2), 48 (4), 19 and 24]

18.3) Again, it has been held that indiscriminate prosecution

of medical professionals for criminal medical negligence is

counter-productive and does no service or good to the society.

A medical practitioner faced with an emergency ordinarily tries

his best to redeem the patient out of his suffering. He does not

gain anything by acting with negligence or by omitting to do

an act. Obviously, therefore, it will be for the complainant to

clearly make out a case of negligence before a medical

practitioner is charged with or proceeded against criminally. A

surgeon with shaky hands under fear of legal action cannot

perform a successful operation and a quivering physician

cannot administer the end-dose of medicine to his patient. If

the hands be trembling with the dangling fear of facing a

criminal prosecution in the event of failure for whatever

reason--whether attributable to himself or not, neither can a

surgeon successfully wield his life-saving scalpel to perform

an essential surgery, nor can a physician successfully

administer the life-saving dose of medicine. Discretion being 30

the better part of valour, a medical professional would feel

better advised to leave a terminal patient to his own fate in the

case of emergency where the chance of success may be 10%

(or so), rather than taking the risk of making a last ditch effort

towards saving the subject and facing a criminal prosecution if

his effort fails. Such timidity forced upon a doctor would be a

disservice to the society. [See paras 28, 29 and 47]

18.4) In the case of State of Punjab v. Shiv Ram and

Others [2005] 7 SCC 1, a three Judge Bench of this Court

while dealing with the case of medical negligence by the doctor

in conducting sterilisation operations, reiterated and

reaffirmed that unless negligence of doctor is established, the

primary liability cannot be fastened on the medical

practitioner. In paragraph 6 of the judgment it is said: (page

no. 7)

"Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee (1957) 1 WLR 582: (1957) 2 AII ER 118 (QBD) 31

popularly known as Bolam's test, in its applicability to India".

19. In the light of the propositions of law settled in the above

cited judgments of this Court, we are of the view that both on

facts and in law no case is made out by the appellant against

the respondents. The allegations made in the complaint do

not make out a case of negligence or deficiency in service on

the part of the respondents. It is not the case of the appellant

that the doctors named in the complaint are not qualified

doctors and specialized in their respective fields to treat the

patient whom they agreed to treat. All the doctors who treated

the patient are skilled and duly qualified specialists in their

respective fields and they have tried their best to save the life

of Priya Malhotra by joining their hands and heads together

and performed their professional duties as a team work. The

appellant has not challenged the post mortem report dated

25.08.1989 submitted by J.J. Hospital wherein it has been

stated that before Priya Malhotra was admitted to Bombay

Hospital, she was sick since four months by loose motion and

vomiting. A copy of post mortem report of deceased Priya 32

Malhotra placed on record of the Commission by

Dr. A. Kriplani with his evidence on affidavit would read as

under:

III] Microscopy - 1) Kidneys (same histology in sections from the two bits) reveal advanced kidney disease in the end stage. Most of the glomeruli are sclerosed/hyalinised and structurally obsolete. Some of the few glomeruli not effected by advanced sclerosis reveal hypercellularity indicating that the end stage is the result of chronic progressive diffuse proliferative glomerulinephritis. The end stage lesion is extensive, irreversible and can cause intractable chronic renal failure. Interstitial fibrosis and inflammation are widespread.

Finally, it was opined by doctors that the death of Priya

Malhotra was due to peritonitis with renal failure.

20) On our independent examination of the order of the

Commission and other entire material on record discussed

hereinabove, we find that the Commission has properly and

rightly appreciated the entire factual and legal aspects of the

matter and there is no infirmity or perversity in the findings

recorded by the Commission which warrants any interference

in this appeal.

33

21) No other point has been raised by the appellant. We,

thus, find no merit and substance in any of the submissions

made on behalf of the appellant.

22) In the result for the above-stated reasons there is no

merit in this appeal and it is, accordingly, dismissed.

23) The parties are left to bear their own costs.

........................................J. (Lokeshwar Singh Panta)

........................................J. (B. Sudershan Reddy)

New Delhi, March 24, 2009.

34