REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3971 OF 2011
Dr. S.K. Jhunjhunwala ….Appellant(s)
VERSUS
Mrs. Dhanwanti Kumar & Anr. …Respondent(s)
J U D G M E N T
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
of 2004 whereby the National Commission allowed
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 not 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
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.3971 OF 2011
Dr. S.K. Jhunjhunwala ….Appellant(s)
VERSUS
Mrs. Dhanwanti Kumar & Anr. …Respondent(s)
J U D G M E N T
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
of 2004 whereby the National Commission allowed
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 not 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
