IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 832 of 2000(G)
1. MONI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :04/02/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 832 of 2000
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Dated this the 4th day of February, 2011.
JUDGMENT
The courts below found that the first defendant in
O.S. 711 of 1996 before the Munsiff’s court, Ernakulam to be
negligent in treating the plaintiff in the suit, whereby she had
to incur heavy damages for further treatment at a different
hospital. The aggrieved first defendant has come up in
appeal. The parties and facts are hereinafter referred to as
they are available before the trial court.
2. It is not in dispute that the plaintiff was admitted
in General Hospital, Ernakulam in the early hours of
26.6.1995. On the said day, at about 8.30 a.m. the first
defendant is said to have examined her and according to the
plaintiff she and her husband were told that a surgery is
necessary to cure her illness. The plaintiff speaks about some
payments made to the doctor. Several tests were done on
1.7.1995, 4.7.1995 and 8.7.1995. All along, according to the
S.A.832/2000. 2
plaintiff, the first defendant reiterated that a surgery was
the only option. According to the plaintiff, it so happened
that the Minister for Health happened to visit the hospital
and the husband of the plaintiff complained about the
hospital building. It is also stated that somebody had
complained to the Minister about bribes being insisted by
the first defendant and that annoyed and irritated him. He
thereafter became indifferent and careless in treating the
plaintiff and discharged her on 11.7.1995 when she had not
recovered from her illness. Thereafter she had to go to
Ernakulam Medical Centre and to undergo a surgery. She
had incurred heavy expenses and had undergone lot of
sufferings. Pointing out that the need for operation arose
due to the negligence on the part of the first defendant
doctor, the suit was laid for damages.
3. The first defendant resisted the suit. He denied
the allegations in the plaint and pointed out that he had
done what a doctor would do in the circumstances under
which the plaintiff was placed and he had never told either
S.A.832/2000. 3
the plaintiff or the husband of the plaintiff that operation
was the only remedy. He asserted that he had followed
conservative method of treatment and since the patient had
responded to the treatment, he felt that surgery was
unnecessary. He also pointed out that at the time of
discharge the plaintiff was given specific instruction that if
there was any discomfort or illness, she should at once
come and meet him. But after getting discharged, the
plaintiff never turned up and he had no reason to think that
the plaintiff was not cured. Denying that he was in any way
negligent in treating the plaintiff, he prayed for a dismissal
of the suit.
4. On the above pleadings, necessary issues were
raised by the trial court. The evidence consists of the
testimony of P.Ws.1 to 8 and marked Exts.A1 to A19 from
the side of the plaintiff. The first defendant examined
himself as D.W.1. Exts. X1 and X2 series were marked as
third party exhibits. The trial court on an examination of the
medical records and on the basis of the evidence of the first
S.A.832/2000. 4
defendant as D.W.1 came to the conclusion that there was
gross negligence on the part of the first defendant and
decreed the suit.
5. The first defendant carried the matter in appeal
as A.S. 49 of 1998 before the Sub Court, Ernakulam. The
lower appellate court after an evaluation of the evidence
concurred with the trial court and dismissed the appeal.
6. Notice is seen to have been issued on the
following questions of law:
“1) Were not the courts below wrong in
awarding damages to the plaintiff in the absence
of any proof regarding negligent conduct from the
part of the 1st defendant resulting in any injury to
the plaintiff?
2) Were not the courts below totally in error
in completely ignoring the evidence of P.W.7 and
Ext.X2 that the plaintiff had a long previous
history of stomach complaints and she had
undergone several months of continuous
treatment at Ernakulam Medical Centre for
discharge of blood through mouth and anus etc
even after the surgery in July 1996 and the
S.A.832/2000. 5
claimed cure and yet finding the 1st defendant is
guilty of negligence in not performing a surgery
on the plaintiff?
3. Were not the courts below totally in error
in allowing Rs.6,000/- also as compensation to the
plaintiff which amount was admittedly expended
for the treatments at Ernakulam Medical Centre
unconnected with the surgery for intussusception?
4. The Hon’ble Supreme Court of India in AIR
1969 Sc 132 held that a Doctor is entitled to
decide the course of treatment in an emergency.
Were not the court below wrong in refusing to
follow this principle of law laid down by the apex
court and finding the first defendant guilty of
negligence in not operating on the plaintiff?
5. In as much as there is no proof of any
injury being suffered by the plaintiff due to the
alleged negligence of the 1st defendant are not the
judgments against the dictum laid down in AIR
1936 PC 154?
6. Has not the courts below completely
misread the pleadings and evidence in the case
and came to absurd conclusions?
7. Is the judgment and decree passed nearly
an year after the final hearing valid in law? Is not
S.A.832/2000. 6
such judgment invalid and inoperative in view of
the mandate under Order 20 of CPC?”
7. In fact the only question that arises for
consideration is whether there is sufficient proof to show
that the first defendant was negligent in treating the
plaintiff.
8. Learned counsel appearing for the appellant
pointed out that both the courts below had not properly
addressed themselves to the legal principles involved in the
case and have mechanically acted on the basis of some
records which too had not been properly considered.
Learned counsel pointed out that allegation regarding the
taking of bribe etc. remains unproved and there is nothing
to indicate that the first defendant was negligent in
treating the plaintiff. In fact the evidence of the doctors
examined by the plaintiff herself would show that the first
defendant had resorted to the normal course of treatment
which a doctor would adopt in a circumstance under which
the plaintiff was placed and there is nothing to show that he
S.A.832/2000. 7
had done any negligent act, which aggravated the illness of
the plaintiff. Learned counsel very fairly conceded that
there may be some inconsistencies in the evidence of
D.W.1 and the records maintained in the hospital. But that
is insufficient to show that the first defendant was negligent.
The test to be applied is whether the first defendant had
exercised the skill and expertise required of him and not
whether there were slight discrepancies in the evidence.
The proper approach is to ascertain whether a person with
skill and expertise of the first defendant would have
normally resort to the mode of treatment adopted by him in
the case of the plaintiff. If the course of treatment chosen by
the first defendant is an accepted mode of treatment, then
the mere fact that a better method could have been chosen
is not a ground to hold that the first defendant was
negligent. An appreciation of the evidence in the case,
according to learned counsel, would clearly show that the
claim of the plaintiff that the first defendant had told her
and her husband that surgery was the only option cannot be
S.A.832/2000. 8
true. Even going by the evidence adduced by the plaintiff, it
is clear that surgery is the last option. It was also pointed
out that except for the ipsi dixit of the plaintiff, there is
nothing to show that she was not relieved of her illness at
the time of discharge from the General Hospital on
11.7.1995. Of course, she was asked to continue taking
medicines for a while. According to learned counsel, there
is absolute want of evidence to show that the first defendant
was in any way negligent in giving treatment to the plaintiff.
9. In reply, learned counsel appearing for the
respondents pointed out that both the courts below
meticulously analysed the evidence on record and have
come to the conclusion that the first defendant was
negligent. There is considerable inconsistency between the
evidence of D.W.1 and the official records maintained in the
hospital and that is sufficient to show that there was
absolute want of care and caution on the part of the first
defendant in treating the plaintiff. Learned counsel went on
to contend that the nature of illness of the plaintiff was such
S.A.832/2000. 9
that immediate surgery had to be done and the first
defendant, who is a person with expertise in that field of
medicine, deliberately abstained from conducting surgery
due to extraneous reasons. It is also contended that at the
time of discharge, the plaintiff was still suffering from her
illness and she had soon thereafter to go to another
hospital where she underwent surgery. First defendant was
well aware of the fact that surgery was the only remedy for
the illness of the plaintiff, but he abstained from performing
a surgery due to extraneous considerations. It is also
pointed out that both the courts below were concurrently
found that the first defendant has been negligent. Being a
question of fact, no interference is called for in Second
Appeal.
10. Merely because this court is sitting in Second
Appeal, it does not mean that this court is precluded from
considering the evidence in the case to see that the finding
of the courts below suffers from gross illegality and injustice.
Learned counsel for the appellant took this court through
S.A.832/2000. 10
the entire evidence adduced in the case and contended
that the finding of the courts below that the first defendant
was negligent cannot be sustained.
11. At the outset itself, it must be said that there
is considerable force in the above submission. That the
plaintiff was admitted in the General Hospital on 26.6.1995
is a matter not in dispute. It is also not in dispute that the
first defendant had attended to her on the same day. The
evidence discloses that the plaintiff had intussusception,
which means ‘the enfolding of one segment of the intestine
within another’. Learned counsel appearing for the
respondent would contend that in such cases the only
remedy is to subject the patient to surgery and the course
adopted by the first defendant cannot be appreciated. The
above contention does not appear to be correct.
12. One may in this regard refer to the evidence
of the doctors examined by the plaintiff herself.
13. P.W.4 was a doctor in the Medical Centre
Hospital at the relevant time. He deposed that on
S.A.832/2000. 11
18.7.1995 the plaintiff was admitted in the hospital. He said
that on examining the X-Ray taken, he did not find any
problem with the large intestine. He then speaks about the
various modes of investigation adopted in such cases. He
finally says that he only examined the patient to ensure the
physical fitness of the patient to undergo surgery.
14. P.W.6 was a Gastro intestinal surgeon
attached to Medical Centre Hospital. He speaks about the
operation conducted on the patient on 19.7.1995. He would
say that she was suffering from Jejunial intussusception. It
is significant to notice that in chief examination itself this
witness had stated that it was only on opening of the
abdomen it was diagnosed as Jejunial intussusception. It is
also equally important to notice that even if the patient
suffers from acute intussusception, it is not necessary that
surgery should be immediately conducted. The doctor
would specifically depose that surgery is not the only mode
of treatment in such cases. The patient can be asked not to
take food including water and put the patient on I.V. It is
S.A.832/2000. 12
possible that there may be spontaneous reduction. He
speaks about other modes of treatment also. In cross
examination this witness has stated that Jejunial
intussusception is a very rare phenomenon. He would also
depose that on conservative treatment if the obstruction in
the intestine gets removed, then surgery may not be
necessary at all. Even if the patient responds to the
conservative method of treatment, the patient will not be
discharged immediately and kept under observation for a
while.
15. P.W.7 is yet another doctor attached to the
Medical Centre Hospital. He is a surgeon. He would depose
that at the time of admission of the patient they suspected
intestinal intussusception. He also deposed that the patient
was having similar symptoms for the last 3 or 4 years. After
going through the records of the General Hospital, where
the patient had undergone treatment, they were not able to
come to a definite conclusion regarding her ailment. He
however deposed that in the General Hospital all required
S.A.832/2000. 13
tests were done. He would say that immediately the patient
was put on conservative treatment. But they found no
improvement on the next day and therefore they decided to
conduct a laproscopy. When they did that, they detected a
fairly large lump in the intestine. When they found it, they
could not reduce it though laproscopy, they decided to open
the abdomen. Only when they opened the abdomen and
investigated they found that the patient was suffering
intussusception. After operation, the patient recovered
without much complication. Through this witness, the
records of the Medical Centre Hospital were marked.
16. What is significant about the evidence of this
witness is that in chief examination itself he says that as
soon as intestinal intussusception is detected, it is not
necessary to go in for a surgery. The usual practice
followed is to adopt conservative method of treatment and if
the condition of the patient does not improve, then go in for
operation. In several cases on conservative treatment the
patient’s condition improve, otherwise the patient would be
S.A.832/2000. 14
subjected to surgery. Even if the patient shows
improvement, P.W.7 would say that the patient is kept under
observation for a few days.
17. P.W.8 is an independent witness, who speaks
about having gone along with P.W.2 to the doctor to give
money. His evidence is not of much relevance.
18. D.W.1 is the first defendant, who had
attended to the patient when she had gone to the General
Hospital. At the relevant time he was functioning as the
Surgeon in the General Hospital. He speaks about the
treatment given to the patient by him and says that since
the patient showed considerable improvement, then put on
conservative method of treatment. He discharged the
patient on 11.7.1995. He would also depose that at the time
of discharge, the patient was cautioned that in case of any
illness the patient should at once come and meet him. He
would say that after discharge, the patient had never
returned to him. The witness would maintain that if on
adopting conservative method of treatment, the condition of
S.A.832/2000. 15
the patient does not improve, then alone surgery is resorted
to. In the case on hand, he would say that the plaintiff
responded to the conservative method of treatment and
therefore he did not feel it necessary to subject the patient
to a surgery.
19. Ext.X1 is the file maintained in the General
Hospital and Ext.X2 is the file maintained in the Medical
Centre Hospital.
20. Before going into the evidence relating to
the negligence on the part of the doctor, it will be useful to
refer to the law on the point. The law of negligence
regarding professional has undergone considerable change
in recent times. The law of which was initially reluctant to
attribute negligence to professional men, has now
developed will laid principles to judge the standard of care
and caution to be exercised by a professional. As far as
medical profession is concerned, the law laid down in Bolam
v. Froern Hospital Management Committee ((1957) 2
S.A.832/2000. 16
All ER 118) is considered to be the locus classica in the field.
In the said decision it was held as follows:
“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 well established law that it is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art. In the case of a medical man, negligence
means failure to act in accordance with the
standards of reasonably competent medical men
at the time. There may be one or more perfectly
proper standards, and if he conforms with one of
these proper standards, then he is not
negligent.”
The above principle continues to be the law even now.
21. A doctor’s liability to patient arises both under
tort and in contract. The question often arises as to what is
the degree of care and caution that is expected of a doctor.
Lord Denning in The Discipline of Law at page 243 states as
follows:
S.A.832/2000. 17
“You should only find him guilty of negligence
when he falls short of the standard of a reasonably
skilful medical man, in short, when he is
deserving of censure — for negligence in a
medical man is deserving of censure.”
It is further stated:
“But so far as the law is concerned, it does not
condemn the doctor when he only does that which
may a wise and good doctor so placed would do.
It only condemns him when he falls short of the
accepted standards of a great profession; in short,
when he is deserving of censure.”
22. Salmond and Heuston on the Law of Torts
Eighteenth Edition at page 215 observes thus:
“It is expected of such a professional man
that he should show a fair, reasonable and
competent degree of skill; it is not required that
he should use the highest degree of skill, for there
may be persons who have higher education and
greater advantages than he has, nor will he be
held to have guaranteed a cure. So a barrister is
S.A.832/2000. 18
not expected to be right: it is enough that he
exercises reasonable care. So a medical
practitioner should not be found negligent simply
because one of the risks inherent in an operation
of the kind occurs, or because in a matter of
opinion he made an error of judgment, or because
he has failed to warn the patient of every risk
involved in a proposed course of treatment. There
is no rule that a doctor must tell a patient what is
the matter with him.”
23. In the decision reported in Antonio Dias v.
Frederick Augustus (AIR 1936 PC 154) it was held as
follows:
“Where a suit is filed for damages against a
doctor, the onus of proof is upon the plaintiff, and
if he is to succeed he must demonstrate, beyond
reasonable doubt, that the defendant was
negligent, and that his negligence caused the
injury of which the plaintiff complains.”
24. In the decision reported in Poonam Verma
v. Ashwin Patel (AIR 1996 SC 2111) it was held as follows:
S.A.832/2000. 19
“The breach of duty may be occasioned
either by not doing something which a reasonable
man, under a given set of circumstances would
do, or, by doing some act which a reasonable
prudent man would not do.”
25. 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.”
S.A.832/2000. 20
26. In the decision reported in Jacob Mathew v.
State of Punjab (2005(3) K.L.T. 965(SC), which has
considered the matter in detail following the principle laid
down in Bolam’s case held as follows:
“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 medical
profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the
S.A.832/2000. 21
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
S.A.832/2000. 22
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.
(3) A professional may be held liable for
negligence on one of the 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 that
cannot be made the basis or the yardstick for
judging the performance of the professional
proceeded against on indictment of negligence.
(4) The test for determining medical negligence
S.A.832/2000. 23
as laid down in Bolam’s case [1957] 1 W.L.R. 582,
586 holds good in its applicability in India.
(5) The jurisprudential concept of negligence
differs in civil and criminal law. What may be
negligence in civil law may not necessarily be
negligence in criminal law. For negligence to
amount to an offence, the element of mens rea
must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence
should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a
higher degree may provide a ground for action in
civil law but cannot form the basis for prosecution.
(6) The word `gross’ has not been used in S.
304A of IPC, yet it is settled that in criminal law
negligence or recklessness, to be so held, must be
of such a high degree as to be `gross’. The
expression `rash or negligent act’ as occurring in
Section 304A of the IPC has to be read as qualified
by the word `grossly’.
(7) To prosecute a medical professional for
negligence under criminal law it must be shown
S.A.832/2000. 24
that the accused did something or failed to do
something which in the given facts and
circumstances no medical professional in his
ordinary senses and prudence would have done or
failed to do. The hazard taken by the accused
doctor should be of such a nature that the injury
which resulted was most likely imminent.
(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.”
27. In the decision reported in INS. Malhotra
(Ms) v. Dr.A.Kriplani ((2009) 4 SCC 705) it was held as
follows:
“Negligence in the context of the
medical profession necessarily calls for a
treatment with a difference. To infer rashness or
S.A.832/2000. 25
negligence on the part of a professional
negligence. A simple lack of care, an error of
judgment or an accident, is not proof of
negligence on the part of a medicalrofessional. so
long as a doctor follows apractice acceptble 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 orprocedure which the accused
followed. The classical statement of law in Bolam
case, has been widely accepted as decisive of the
sandard 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 medical practitioner
exercising an ordinary degree of professional skill.
the fct 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
S.A.832/2000. 26
which he practises. Three things are pertinent to
be noted. Firstly, the standard of care, when
assessing the practce 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
touse some particular equipment, the charge
would fail if the equipment was not generally
available at that oint 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
judging the alleged negligence.
In State of Punjab v. Shiv Rama three-Judge
Bench of this court while dealing with the case of
medical negligence by the doctor in conducting
sterilization operations, reiterated and reaffirmed
that unless negligence of doctor is established, the
primary liability cannot be fastened onthe medical
practitioner. In paragraph 6of hejudgment it is
S.A.832/2000. 27
stated:
“6. Very recently, this Court has dealth with
the issues ofmedical 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. The
Court has approved the test as laid downin Bolam
v. Friern Hospital Management committee
popularly known as Bolam test, in its applicability
to India.”
28. In the decision reported in Kusum Sharma
v. Batra Hospital and Medical Research Centre (AIR
2010 SC 1050) it was held as follows:
“It is a matter of common knowledge that
after happening of some unfortunate event, there
is a marked tendency to look for a human factor 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 forit. A professinal deserves
total protection. The Indian Penal Code has taken
care to ensure that people who act in good faith
S.A.832/2000. 28
should not be punished. Sections 88, 92 and 370
of the Indian Penal code give adequate protection
to the professional and particularly medical
professionals.
On scrutiny of the leading cases of medical
negligence both in our country and other countries
especially 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 ordinarly 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
bythe 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
S.A.832/2000. 29
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 circumstance of each case is what the
law requires.
IV. A medical practitiner 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
S.A.832/2000. 30
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 conclusive to the
efficiency ofthe 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 unnecessary harassed or
humiliated so that they can perform their
professional duties without fear and apprehension.
X. the medical practioners at times also have
to be saved from such a class of complainants
who use criminal process as a tool for pressurizing
the medical professionals/hospitals particularly
private hositals 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
S.A.832/2000. 31
theinterest of the patients. The interest and
welfare of the patients have to be paramount for
the medical professinals.:
29. In the decision reported in Malay Kumar
Ganguly v. Sukumar Mukherjee (AIR 2010 SC 1162) it
was held as follows:
“Charge of professional negligence on a
medical person is a serious one as it affects his
professional status and reputation and as such the
burden of proof would be more onerous. A doctor
cannot be held negligent only because something
has gone wrong. He also cannot be held liable
for mischane or misadventure or for an error of
judgment in making a choice when two options are
available. The mistake of diagnosis is not
necessarily a negligent diagnosis is not necessarily
a negligent diagnosis.
Even under the law of tort a medical
practitioner can only be held liable in respect of an
erroneous diagnosis if his error is so palpably
wrong as to prove by itself that it was negligently
arrived at or it was the product of absence of
reasonable skill and care on his part regard being
S.A.832/2000. 32
held to the ordinary level of skill in the profession.
For fastrning criminal liability very high degree of
such negligence is required to be proved.
Death is the ultimate result of all serious
ailments and the doctors are there tosave the
victims from such ailments. Experience and
expertise of a doctor are utilized for the recovery.
But it is not expected that in case of all ailments
the doctor can give guarantee of cure.”
30. In the decision reported in Kusum Sharma
v. Batra Hospital and Medical Research Centre (2010)
3 SCC 480) it was held as follows:
“In a celebrated and oft cited judgment in
Bolam v. Friern Hospital Management Committee
(Queen’s Bench Division) McNair ,L.J. observed:
(i) a doctor is not negligent, if he is acting in
accordance with a practice accepted as proper by
a reasonable body of medical men skilled in that
particular art, merelybecause there is a body of
such opinion that takes a contrary view.
“The direction that, where there are two
different schools of medical practice, both having
recognition among practitioners, it is not negligent
for a practitioner to follow one in preference to the
S.A.832/2000. 33
other accords also with American law. Moreover,
it seems that by American law a failure to warn
the patient of damages of treatment is not, of
itself, negligence.”
McNair, L.J. observed:
Before I turn to than, I must explain what in
law we mean by ‘negligence’. In the ordinary case
which does not involve any special skill,
negligence in law means this: some failure to do
some act which a reasonable man in the
circumstances would do, or the doing of some act
which a reasonable man in the circumstances
would do, or the doing of some act which a
reasonable man in the circumstances would not
do; and if that failure or the doing of that act
results in injury, then there is a cause of action.
How do you test whether this act or failure is
negligent? In an ordinary case it is generally said,
that you judge that by the action of the man in the
street. He is the ordinary man. In one case it has
been said that you judge it by the conduct of the
man on the top of a clapham Omnibus. He is the
ordinaryman. But where you get a situation which
involved the use of some special skill or
competence, then the test as to whether there has
S.A.832/2000. 34
been negligence or not is not the test of the man
on the top of a Clapham Omnibus, because he has
not got this man exercising and professing to have
that special skill…. A man need not possess the
highest expert skill at the risk of being found
negligent. It is well-established law that it is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art.
In Chin Keow v. Govt. of Malaysia the Privy
Council applied these words of McNair, L.J. in
Bolam v. Friern Hospital Management Committee.
“………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 ornot 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.”
(See the decisions reported in Marghesh K. Parikh
(minor) v. Dr. Mayur H.Mehta ((2011) 1 SCC 31) and
V.N. Shrikhande (Dr.) v. Anita Sena Fernandes ((2011)
1 SCC 53)).
S.A.832/2000. 35
31. A perusal of the above decisions shows that
attributing negligence to a medical personnel is indeed a
serious affair and as it affects his professional status and
reputation. In such cases, according to the various
decisions, the burden of proof is very high. Merely because
the patient has not been cured or something has gone
wrong, the medical officer cannot be held liable in tort. He
may make an error in the choice of two options and every
error in diagnosis need not be a negligent one. His act has
to be such that it is palpably wrong and contrary to the
medical standards and procedures usually adopted in such
cases. A high degree of negligence is usually insisted in
such cases.
32. Before going further into the matter, it will be
useful to understand what exactly was the ailment of the
plaintiff. At the time of admission in the General Hospital,
the first defendant did suspect a lump in the stomach. But
the evidence given by the witnesses examined by the
S.A.832/2000. 36
plaintiff herself show that it is not easy to detect
intussusception. In fact the evidence of one of the surgeons
would indicate that they were able to confirm
intussusception when they infact opened her abdomen.
33. Intussusception occurs when part of the bowel
or intestine is wrapped around itself producing a masslike
object on the right side of the abdomen during palpation.
The major symptom of intussusception is vomiting and
severe abdominal pain. There may be nausea and diarrhea
and occasionally the patient may develop fever. Once
intussusception is suspected, barium enema is resorted to.
It is well accepted in medical field that even when
intussusception is detected, it is not necessary to subject
the patient to a surgery immediately. The usual procedure
that is followed is conservative method of treatment and
then the medical officer waits to see if the patient responds
to such treatment. If the patient does respond to that
treatment, and intussusception gets reduced, then the
patient is kept under observation for a few days. The initial
S.A.832/2000. 37
methods of treatment adopted are to stop oral feeding and
to put the patient on I.V. From the evidence available on
record, it is almost clear that surgery is the last option and
not the first one. Of course, it also depends upon the
intensity of the disease. If intussusception ailment persists,
the possibility of intestinal gangrene, shock and death
increases.
34. The courts below have mainly been
influenced by the inconsistency in the evidence of D.W.1
and the entries in Ext.X1 record. Certainly there are some
conspicuous and significant differences and inconsistencies.
But the question is whether that by itself is sufficient to
fasten liability on the first defendant.
35. Here one has to notice the evidence of the
first defendant. His definite stand was that he had
suspected intussusception and as the normal procedure he
resorted to conservative method of treatment. He would
say that the patient responded to the treatment and
therefore he postponed the surgery. There is evidence in
S.A.832/2000. 38
this case to show that the patient responded to barium
enema and also that she had taken oral food few days after
the admission. While the plaintiff would maintain that she
continued to vomit and had severe abdomen pain, the first
defendant would say that she showed marked improvement
in her condition. What D.W.1 says can be found to be true
from the entries in Ext.X1. Of course there is some
incongruity regarding the directions given by the first
defendant and the steps taken by the nursing staff. The
statement of the first defendant as D.W.1 that he did not
care to look into that aspect may not be commendable. But
that is far from saying that he was negligent.
36. Learned counsel appearing for the
respondents in this appeal stressed that the moment when
it was suspected that the patient was having
intussusception, she should have been subjected to surgery.
The further contention is that if as a matter of fact after
admission on 26.6.1995 if the patient responded to the
treatment next two or three days, there was no necessity to
S.A.832/2000. 39
retain her in the hospital. Emphasis was also laid on the
plaintiff undergoing further tests on 1st, 4th and 8th July,
1995. It was very vehemently contended that if what D.W.1
says is true, it was unnecessary to conduct these tests and
that shows that the condition had never improved.
37. Learned counsel for the first respondent
seems to have omitted to notice the evidence furnished by
witnesses from the side of the plaintiff. Before going into
that aspect, one fact may be noticed. After discharge from
the General Hospital and before going to the Medical Centre
Hospital, the plaintiff had met a doctor attached to
P.S.Clinic, which is near her house. She was discharged
from the General Hospital on 11.7.1995. D.W.1 categorically
says that at the time of discharge she was cautioned that if
the symptoms return, she would meet him immediately.
Nobody has a case that she ever went back to General
Hospital. On 13.7.1995 it seems that the plaintiff had gone
to the Clinic run by P.W.5. She would say that she had
advised the plaintiff to go to a well equipped hospital. P.W.5
S.A.832/2000. 40
says that she gave an injunction to the patient and the
patient went back to her house. In cross examination, this
witness would say that between 13.7.1995 and 18.7.1995
when the patient came back with the same complaint,
according to her, the patient was on normal diet.
38. Both the plaintiff and P.W.3, her husband,
have a case that for two reasons the first defendant was
negligent in the treatment of the plaintiff. One is that P.W.3,
the husband of the plaintiff had complained to the Minister,
who had visited the hospital, about the nature of the
building and also someone else had complained that the
first defendant was insisting bribes for treating the
patients. P.Ws. 1 and 3 do say that they had paid amounts
to the first defendant, though the first defendant denies the
same. However, P.Ws.1 and 3 are gracious enough to say
that the first defendant never demanded any amount from
them and the payment made by them were voluntary
payments.
S.A.832/2000. 41
39. The evidence of P.W.3 shows that even
though he says that the condition of her wife did not
improve, he does say that his wife was able to attend to her
routine affiars during the time while she was in the hospital.
It is also seen from his evidence that oral food was taken
after a few days under instructions from the medical staff. I
am not oblivious of his statement that even at the time of
discharge, his wife was suffering from the same illness. One
may here also refer to the evidence of P.W.1. P.W.1 says
that when she developed pain in the abdomen again on
13.7.1995, she had gone to the Clinic run by P.W.5. She
would say that on the first occasion, i.e., on 13.7.1995 when
she met P.W.5, she gave her an injunction, but she did not
ask P.W.1 to go to a better hospital. This is contrary to the
evidence furnished by P.W.5, who categorically says that
when the patient came to her on 13.7.1995, she was
advised to go and take better treatment in a hospital which
has more facilities. P.W.1 says that on 13.7.1995 and
18.7.1995 when she went to P.S. Clinic, she could not take
S.A.832/2000. 42
any food due to vomiting. One may here at once refer to
the evidence of P.W.5, who says that as per her diagnosis
and as per the information gathered from the patient, from
13.7.1995 to 18.7.995 P.W.1 was taking normal food. One
may again refer to the evidence of P.W.4. He would say that
if acute intussusception is detected in a patient, normally
two types of treatments are adopted, they are conservative
method and surgical method. He would also depose that
normally at first conservative method of treatment is
adopted. P.W.6, whose evidence has already been referred
to, is a surgeon attended to the Medical Centre Hospital.
He has categorically stated in his deposition that the
remedy for acute intussusception is not surgery alone. The
first mode of treatment is to instruct the patient not to take
any food orally including water. The doctor says that, that
may bring about spontaneous reduction of intussusception
and he also says about the various methods of treatment
before surgery is resorted to. His evidence discloses that it
is extremely difficult to diagnosis intussusception. It is in
S.A.832/2000. 43
this regard the evidence of P.W.7 needs to be appreciated.
He also says that on 18.7.1995 the plaintiff came to the
hospital with a complaint of vomiting and severe abdominal
pain and they had suspected something wrong with the
intestine. He would say that the patient was put on
conservative method of treatment. Only when they found
that she did not respond to that treatment, surgery was
decided to conduct upon. It is also significant to note that in
chief examination this witness would say that whey they
conducted laproscopy, they found a lump in the stomach,
but only when they opened and probed into it, it was
diagnosed as intussusception.
40. Thus, an analysis of the evidence will clearly
show that the mode of treatment adopted by the first
defendant initially is an accepted method even going by the
evidence furnished by the plaintiff herself. The contention
of the learned counsel for the respondent was that on the
very same day of admission and on the very next day of
admission, patient was put on I.V, that is not the accepted
S.A.832/2000. 44
mode of treatment in case acute intussusception is initially
diagnosed. The uniform opinion of all the doctors examined
is that, first the medical officer concerned resorts to
conservative method of treatment and only if the patient
does not respond to the same and develop further
complications, surgery is resorted to. In other words,
surgery is the last option and not the first one as contended
by the learned counsel for the first respondent.
41. One need not disbelieve the first defendant
when he says that on 11.7.1995 when the plaintiff was
discharged, her condition had considerably improved. If as
a matter of fact what is claimed by the plaintiff and her
husband P.W.3 is correct, certainly, it would have been
difficult for her to survive for 2 or more days in General
Hospital. It is to be noticed that she had in the General
Hospital for 11 days. Therefore most of the submissions
made by P.Ws.1 and 3 can be taken only with a pinch of salt.
42. May be that the first defendant was slightly
indifferent. But that by itself does not lead to the conclusion
S.A.832/2000. 45
that he was negligent. As noticed in several decisions, the
standard of proof is very high in case of medical negligence.
The evidence does not disclose that the treatment adopted
by the first defendant in the case of the plaintiff was not an
accepted mode of treatment. In fact the evidence is to the
contrary. The initial treatment given to P.W.1, which is
known as conservative method of treatment is one usually
resorted to in all such case. The evidence is clear to the
effect that option of surgery is the last resort when the
patient does not show any improvement after receiving
conservative method of treatment and begins to develop
more and more complications. Applying the above test and
principle to the facts of the case on hand, it therefore
follows that the plaintiff has miserably failed to establish
that the first defendant was negligent in any manner.
43. At the time of hearing of the appeal, this court
was given to understand that the decree has been executed
and the plaintiff has realised the amount decreed by the
trial court and as confirmed by the appellate court.
S.A.832/2000. 46
Considering the facts and circumstances, it is directed that
in case the plaintiff had realized the amount, it shall not be
recovered from the plaintiff. But it is held that the courts
below were not justified in holding that the first defendant
was negligent in the treatment of the plaintiff.
In the result, this appeal is allowed, the judgments
and decrees of the courts below are set aside and the suit
stands dismissed. There will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.