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Doctors Cannot Be Held Liable For Medical Negligence Merely Because They Could Not Save The Patient: SC

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                     While delivering a decisive and overwhelming mandate exclusively in favour of doctors, the Apex Court in an extremely commendable, courageous, cogent, composed and creditworthy judgment titled Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr MA Methusethupathi & Ors and cited in 2022 LiveLaw (SC) 391 in exercise of its civil appellate jurisdiction delivered as recently as on April 20, 2022 has laid down in no uncertain terms that merely because doctors could not save the patient, he/she cannot be held liable for medical negligence. This was the crying need of the hour also. There can be just no denying it.

               To start with, this brief, brilliant, bold and balanced judgment authored by Justice Ajay Rastogi for a Bench of Apex Court comprising of himself and Justice Abhay S Oka first and foremost puts forth in para 1 that, “The sad demise of husband of appellant no.1 after his long illness on 3rd February, 1996 has resulted in initiation of the legal proceedings at the instance of appellant no.1 along with her children on a bona fide belief that the cause of death of her late husband was post-operative medical negligence and follow-up care.”

              Truth be told, the Bench then discloses in para 2 that, “The National Consumer Disputes Redressal Commission (hereinafter “the Commission”), after appreciating the material on record, including the evidence led by the parties, arrived to a conclusion that it was not a case of post operative medical negligence as being alleged by the appellants and dismissed the complaint by the judgment impugned dated 21st July, 2009 which is the subject matter of appeal filed at the instance of the appellants under Section 23 of the Consumer Protection Act, 1986.”

                               While culling out the relevant facts, the Bench then envisages in para 3 that, “In order to appreciate the issue involved in the instant appeal, it may be necessary to cull out the facts relevant for the purpose. Complainant no.1, the widow and complainant nos.2 and 3, the minor children of deceased Naveen Kant, jointly filed a complaint, inter alia, alleging that in the first instance in April, 1990, Naveen Kant developed hypertension and was under the treatment of Dr.P.D. Gulati, Nephrologist, but when no positive changes had come forward, Dr. Gulati advised him for renal transplantation and since then, Naveen Kant was under regular dialysis at the hospital in Delhi under the supervision of Dr. Gulati. When some of his well-wishers informed him about a reputed Nephrologist, Dr. M.A. Muthusethupathi, OP No.1 who is performing kidney transplant surgery at Madras and after going through the entire medical record and seeking opinion of OP No.1 and after completion of all legal formalities as being contemplated under the provisions of the Transplantation of Human Organs and Tissues Act, 1994 (hereinafter “the Act 1994”) and taking into consideration the fact that dialysis twice a week may not have been possible for longevity and for better life span of the patient Naveen Kant, the family took a decision to undergo for kidney transplantation and on the advice of OP No.1, the patient Naveen Kant was admitted to OP No.6 (Aswini Soundra Nursing Home), which is registered under the Act 1994 and a kidney transplant surgery was successfully performed on 12th November, 1995 by a team of 12 experts headed by OP Nos.1, 2 and 5, who are admittedly well qualified and experts with wide knowledge and experience in their respective fields and after the medical condition of Naveen Kant was reviewed by OP No.1, he was discharged from OP No.6 hospital on 24th November, 1995. It may be relevant to note that the doctors who had conducted kidney transplant of the patient have conducted more than 900-1000 renal transplants with good results, but there are cases where patient died even after successful kidney transplant for various reasons which cannot be even under the control of the doctors.”

                     As it turned out, the Bench then discloses in para 4 that, “It reveals from the record that despite all post operative medical treatment and follow up care of the patient under the supervision of medical experts, still the destiny could not save him and he finally died on 3rd February, 1996.”

                   To put things in perspective, the Bench then lays bare in para 5 that, “The complaint of the appellants was that while Naveen Kant was discharged from OP No.6 hospital on 24th November, 1995, he was asked to attend as an outdoor patient for dressing of the wound at the place of incision, but his complaint throughout was that while he was in ICU, he had a pain in his left forearm where intravenous drugs were injected and at the given time, he was assured that the pain would subside in due course of time and as and when OP No.1 came for review, it was the consistent complaint of Naveen Kant of pain in the left forearm since he was operated and the day he was discharged on 24th November, 1995 and within a short period of 7 days on 30th November, 1995, OP No.1 noticed the onset of cellulitis in Naveen Kant’s left forearm and there was a recurrence of abscess at other points, but still the doctors did not take it seriously and conducted investigations into the cause of pain and later on 16th December, 1995, Naveen Kant developed severe headache coupled with loss of proper vision in the right eye and also started vomiting. OP No.1 pointed out these problems to the doctor dialysis in-charge of OP No.6 hospital, who used to administer necessary I.V. injections and do the dressing.”

                                 As we see, the Bench then reveals in para 6 that, “However, on 21st December, 1995, on the advice of OP No.1, Naveen Kant was again admitted to OP No.4 hospital and he was administered anti convulsion injection. Although attended by OP Nos.1, 3 and 5, headache, fever and pus in his left forearm still persisted. OP No.5 made a long incision in the left forearm to drain off the pus, but because OP No.1 was unavailable on 30th December, 1995, OP No.2 was called upon to take care of the patient.”

                               To make matters worse, the Bench then also points out in para 7 that, “Later, more complications crept in and because of complications, there developed abscess in pancreas and liver and the X-ray showed some abnormal developments in the lung and that later converted into Septicemia. Ultimately, the required potency of antibiotics administered or the quality of these antibiotics also failed to respond. He was later moved to ICU on instructions of OP No.3 and in the morning of 31st January, 1996, OP No.1 also visited Naveen Kant, who was at that time in unconscious stage, even after that, his condition continuously deteriorated and the fact is that no one attended to the complaint made by Naveen Kant and finally he could not be saved and left for heavenly abode on 3rd February, 1996. This, according to the appellants was the cause of postoperative negligence and follow up care on the part of the doctors and the nursing staff of the hospital who had not provided proper medical care to Naveen Kant and attributed negligence on the part of the treating doctors and the hospital and claimed special damages/ general damages for a total sum of Rs.95,16,174.33/-.”

                                              Be it noted, the Bench after hearing the learned counsel for both parties and perusing the material placed on record then observes in para 23 that, “In the case of medical negligence, this Court in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. This Court held as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”.

(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. 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 judging the alleged negligence. So also, the standard of care, while 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. Similarly, 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 particular time (that is, the time of the incident) at which it is suggested it should have been used.

xxx xxx xxx

(4) The test for determining medical negligence as laid down in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good in its applicability in India.

xxx xxx xxx

(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law, specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.””

                                     While dwelling on negligence, the Bench then postulates in para 24 that, “The term “negligence” has been defined in Halsbury Laws of England (Fourth Edition) para 34 and as settled in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others, (2010) 3 SCC 480 as under:

“45. According to Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18, the definition of negligence is as under:

“22. Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.””

              Adding more to it, the Bench then while exhaustively dwelling on medical negligence enshrines in para 25 that, “In para 89 of the judgment in Kusum Sharma (supra), the tests of medical negligence while deciding whether the medical professional is guilty of medical negligence, varied tested principles have to be kept in view, this Court held as under:

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

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

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

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

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

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

VI.  The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

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

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

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

                                      It is worth noting that the Bench then while citing a recent and relevant case law seeks to set the record straight by stipulating in para 26 that, “In a recent judgment in Dr. Harish Kumar Khurana v. Joginder Singh and Others, (2021) 10 SCC 291 this Court held that the hospital and doctors are required to exercise sufficient care in treating the patients in all circumstances. However, in an unfortunate case death may occur. It will be necessary that sufficient material on medical evidence should be available before the adjudicating authority to arrive at a conclusion that the death is due to medical negligence. Even death of a patient cannot, on the face of it, be considered to be medical negligence.”

                  Most significantly, the Bench then holds in para 27 that, “It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”

  Simply put, the Bench then makes it clear in para 28 that, “The term “negligence” has no defined boundaries and if any medical negligence is there, whether it is pre or post-operative medical care or in the follow-up care, at any point of time by the treating doctors or anyone else, it is always open to be considered by the Courts/Commission taking note of the exposition of law laid down by this Court of which a detailed reference has been made and each case has to be examined on its own merits in accordance with law.”

          Practically speaking, the Bench concedes in para 29 on the standard of doctors that, “Adverting to the facts of the instant case, the treating doctors, OP Nos.1, 2 and 5 all are academically sound and experts in the field of kidney transplantation. Respondent nos.1, 2 and 5 had disclosed their qualifications of which a detailed discussion is not required and their medical expertise in the field of nephrology and surgery in kidney transplantation has not been doubted by the appellants. It is also not the case of the appellants that the patient was not medically treated by the well-qualified doctors at the time when kidney transplant surgery was undertaken on 12th November, 1995 by the team of doctors including OP Nos.1, 2 and 5 in the OP No.6 hospital which is a registered hospital under the Act 1994.”

                       While rebuffing the claim of the appellant on doctors negligence, the Bench then expounds in para 30 that, “Complaints have been made with regard to the post-operative assistance/follow up care, but from the deposition of two witnesses which has come on record, there was a complaint made by the patient of pain in his left forearm while he was being discharged on 24th November, 1995 after remaining in ICU for 12 days, but he was called upon to continue as outdoor patient and on all the later occasions, even as per the case sheet of the patient, doctors have treated the patient to the best of their medical knowledge and administered the best medical care which was possible. Although the complaint of the patient which remained persistent could not be ruled out despite medically approved drugs being administered to him and if the patient could not be finally saved, that in itself could not be considered to be a case of post operative medical negligence, as is being tried to be projected by the appellants on the basis of the material placed on record.”

                      Most commendably, while taking a balanced approach, the Bench then holds in para 31 that, “The doctors are expected to take reasonable care, but no professional can assure that the patient will come back home after overcoming the crisis. At the same time, no evidence has come on record at the behest of the appellants which, in any manner, could demonstrate that it was a case of post-operative medical negligence or follow up care on the part of treating doctors and both the doctors who have recorded their statements on behalf of the appellants, Dr. Ashok Chopra and Dr. Sophia Ahmed, are not expert doctors in the field of kidney transplantation. Merely because they are doctors by profession, what is being expressed by both of them in the affidavits filed before the Commission would not be considered to be an opinion of experts.”

                                   Quite forthrightly, the Bench then holds in para 32 that, “On the contrary, the two experts who have deposed on behalf of the respondents, Dr. S. Sundar and Dr. Arun Kumar are admittedly experts of the field. At the same time, the respondents – OP Nos.1, 2 and 5 are indeed expert doctors and qualified Nephrologists and this fact has been admitted by the appellants that the patient was under treatment of the best medical professionals and qualified Nephrologists, but those treating doctors could not save the patient Naveen Kant, that in itself could not be considered to be a case of post operative medical negligence which was the main grievance of the appellants before the Commission.”

                          Furthermore, the Bench then hastens to add in para 33 that, “After going through the findings which have been returned by the Commission in the order impugned, we see no reason to differ with the view expressed by the Commission keeping in mind the tests enunciated above. Taking note of the fact that treating doctors, OP Nos.1, 2 and 5 are medical experts in the field of nephrology and so far as OP No.6 hospital where the patient was admitted for transplantation was duly registered under the Act, 1994 and all post operative medical care protocol available at the command of the respondents was administered to the patient, still his physical condition deteriorated and finally he could not be saved, which is really unfortunate, but there cannot be a legal recourse to what is being acceptable to the destiny.”

               Most remarkably, the Bench then held in para 34 that, “In our opinion, the Commission has not committed any manifest error in arriving to a conclusion that in post operative medical negligence or follow up care, there was no negligence being committed by the respondents which may be a foundation for entertaining the complaint filed by the appellants. In consequence thereof, the judgment of the Commission does not call for any interference by this Court.”

                        For clarity’s sake, the Bench then maintained in para 35 that, “Counsel for the appellants submitted that the nursing home/hospital where the patient was admitted for post-operative care, was not registered under the provisions of the Act 1994. With the assistance of the counsel for the parties, we have gone through the Scheme of the Act 1994 and the Rules made thereunder. The hospitals where the procedure of transplantation is undertaken are to be registered in terms of Section 14 of the Act 1994, but for post-operative care, particularly after the patient being discharged from the hospital where the procedure of transplantation has taken place, we have not come across any provision under the Act, 1994 where such hospitals are required to be registered under the Act 1994.”

                                     While sympathizing with the appellant, the Bench then while taking a pragmatic approach notes in para 36 that, “Before parting, we would like to observe that when the matter was finally heard and concluded, appellant no.1 was present in Court and we made a request as to whether she is still interested to get the final judicial verdict on the issue which has been raised at her instance at one stage by instituting a complaint before the Commission. The appellant made a very candid statement before the Court that she wants now to sum up the matter and what she has lost is, in no manner, recoverable and compensation even if awarded by this Court is not going to be of any solace to her at this point of time. We realize the pain of losing her husband and the trauma she has suffered, but that cannot translate into a legal remedy.”

                      As a corollary, the Bench then holds in para 37 that, “Accordingly, we do not find any fault in the reasoning of the Commission, as a result, the appeal is without substance and deserves to be dismissed.”

                                       No wonder, the Bench then directs in para 38 that, “The appeal is accordingly dismissed. No costs.”

                Finally, the Bench then concludes by holding in para 39 that, “All pending application(s) shall stand disposed of.”

                                    All told, the Apex Court has very rightly held the hand of the doctors who did their best to save the life of the patient. The Apex Court has made it crystal clear that merely because doctors could not save the life of the patient, he/she cannot be held liable for medical negligence. There has to be substantial proof that clearly vindicates the gross negligence of the doctors in order to hold them accountable which the Apex Court did not find in this case and so the doctors were thus acquitted. Very rightly so!    

Sanjeev Sirohi

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