IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1386 OF 2001

Ms. Ins. Malhotra                                      .....       Appellant

Versus

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

J U D G M E N T

Lokeshwar Singh   Panta  , J.   

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

National  Consumer  Disputes  Redressal  Commission

(hereinafter referred as the “Commission”) in Original Petition

No.  265  of  1992,  whereby  a  complaint  filed  by

Ms. Ins. Malhotra-complainant has been dismissed.

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

follows:

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

Malhotra  who  died  on  24.08.1989  in  Bombay  Hospital-

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

complained  of  burning  sensation  in  stomach,  vomiting  and

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

advised  to  get  the  patient  admitted  to Bombay Hospital  for

investigation  and  treatment  under  the  care  of

Dr.  Ramamoorthy.   On  14.07.1989,  Priya  Malhotra  was

admitted  to  the  Bombay  Hospital,  but  on  that  day

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

Chaubal examined Priya Malhotra and prescribed to undergo

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

of abdomen.   

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

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

18.07.1989,  Dr.  A.  Kriplani  informed  appellant  that  Priya

Malhotra had kidney failure and chronic renal  failure.   The

appellant  consented  for  immediate  Haemodialysis  as  was

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

spite  of  Heamodialysis,  Priya  Malhotra  continued  to  have

vomiting  and  diarrhea  and  the  same  went  out  of  control.

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

enema tests suspecting Koch’s of abdomen and the two tests

2

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

Sheth  carried  out  ascetic  tapping.  On  22.07.1989,

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

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

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

abdomen was performed on Priya Malhotra for confirmation of

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

performed ascetic tapping on Priya Malhotra and the diagnosis

made  from  Histopathologist  was  confirmation  of  Koch’s

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

Streptomycin injection with other medicines.  The two reports

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

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

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

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

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

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

Bombay Hospital showed lung and pleura normal.

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

Jahagirdar examined Priya Malhotra and advised laparoscopy.

3

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

Jahagirdar on 09.08.1989. Four bottles of blood were given to

Priya  Malhotra  during  diagnosis.   Liver  profile  and  renal

profile tests were performed.  Liver profile showed ‘Australia

Antigen’ positive and renal profile showed low serum sodium

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

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

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

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

and  in  her  absence  Dr.  Pratima  Prasad  performed

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

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

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

recovery  room  where  she  allegedly  told  the  appellant  by

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

was  speechless  and  having  breathing  difficulty.

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

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

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

floor  of  the  hospital.   According  to  the  appellant,  Priya

4

Malhotra  started  becoming  semi-conscious  and  erratic  in

behaviour.   On  20.08.1989,  Priya  Malhotra  developed

intestinal fistula leading to her throwing out liquid from her

body  and  she  developed  serious  infections  septicemia.

On 22.08.1989, Priya Malhotra became deep unconscious and

she  passed  no  urine  and  her  face  was  swollen.

On  23.08.1989,  Dr.  A.  Kriplani  advised  Haemodialysis  and

Pneumothorax.   Unfortunately,  on  24.08.1989  at  about

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

mortem upon the dead body of Priya Malhotra was conducted

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

cause of death was due to Peritonitis with renal failure.

2.5)  The appellant filed police complaint against the doctors

of Bombay Hospital in Azad Maidan Police Station, Bombay.

In  the  year  1990,  complaint  was  also  filed  before  the

Maharashtra Medical Council.

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

the  National  Consumer  Disputes  Redressal  Commission,

which was registered as Complaint No. 265 of 1992 against

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

5

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

On notice, the respondents entered appearance and filed their

separate  written statements.   The  Bombay Hospital  initially

was  not  a  party  in  the  complaint.   An  application  for

impleadment of Bombay Hospital as party respondent no. 7

was allowed by the Commission in the year 1996.

3) During  the  course  of  the  proceedings  before  the

Commission,  the  appellant  was  granted  opportunity  to

produce  written opinion of  expert  doctors  in support  of  her

allegations made in the complaint against the named doctors

and Bombay Hospital for their medical negligence or lack of

proper medical treatment to deceased Priya Malhotra.   The

appellant could not lead the evidence of any expert doctor in

support  of  her  complaint  and  she  pleaded  before  the

Commission  that  no  expert  doctor  was  willing  to  give  an

opinion  against  the  doctors  of  Bombay  Hospital  though,

according to her, unofficially some doctors had expressed an

opinion  that  injustice  had  been  done  to  deceased  Priya

Malhotra.   The  appellant  was  issued  notice  to  appear  on

09.07.2000  for  recording  of  her  cross-examination.   The

6

counsel  for  the  respondents  stated  before  the  Commission

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

of the respondent had appeared as witness in support of his

or her defence, as pleaded in the written statement.   

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

Commission  vide its  order  dated  15.09.2000  dismissed  the

complaint of the appellant holding that the complainant has

not been able to establish a case of medical negligence against

the respondents.

4) Being  aggrieved  thereby,  the  appellant  has  filed  this

appeal under Section 23 of the Consumer Disputes Redressal

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

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

taken  us  through  the  order  of  the  Commission  and  other

relevant materials brought on record.    

6) The  learned  counsel  appearing  for  the  appellant

contended that the order of the Commission is bad on facts

and in law as the same is passed without proper appreciation

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

before  the  Commission  which  has  gone  unrebutted  and

7

uncontroverted  as she has not  been cross-examined  by the

respondents.  He next contended that none of the respondents

have appeared for cross-examination before the Commission

nor  any  one  of  them  has  filed  evidence  on  affidavit  as

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

Protection  Act,  1986  which  prescribed  procedure  on

admission  of  complaint  before  the  District  Forum.   The

learned counsel also contended that the appellant, despite her

sincere efforts, could not get the assistance of expert doctors

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

respondents, the Commission in the interest of the appellant

could have on its own summoned expert doctors from some

Government institutions at Delhi to ascertain whether proper

and necessary medical treatment was given by the doctors to

Priya Malhotra or the doctors of Bombay Hospital in discharge

and  performance  of  their  duties  were,  in  any  manner,

negligent and careless.

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

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

Martin F. D’Souza v. Mohd. Ishfaq decided on 17.02.2009.

8

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

some directions, which read as under:-

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

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

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

by the Commission in the impugned order.  He submitted that

the  approach  of  the  Commission  in  appreciating  the

consequences of the complaint and the defence of the doctors

taken in their written statements can never be found faulty.

He  then  contended  that  the  evidence  of  the  appellant  in

9

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

was ever negligent in performing his duties in his discipline.

He contended that the treatment which was adopted by the

doctors  was  inconformity  with  the  advice  and  opinion  of

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

not proved on record that there was any kind of disagreement

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

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

counsel  for  other  respondents  has  adopted  the  arguments

advanced by Mr. Shyam Diwan, Senior Advocate appearing for

Dr. A. Kriplani.

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

counsel for the parties, we have examined the impugned order

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

Commission  in  its  order  has  noticed  the  decision  of

Maharashtra Medical Council dated 13.05.1999, whereby the

Registrar  of  the  Council  conveyed  that  the  Maharashtra

Medical Council after discussion on the merits and demerits of

the case unanimously resolved that ‘there is no negligence on

the part of medical practitioners and they have managed the

10

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

resolved to drop the said inquiry and the medical practitioners

be exonerated.’

9) The  order  of  the  Commission  would  reveal  that

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

“Laparoscopy SOS shall review later” while referring the case

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

time  was  in-charge  of  Department  of  Obstetries  and

Gynaecology of the Bombay Hospital.  The appellant had no

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

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

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

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

Pratima Prasad and she has filed written statement before the

Commission in which it has categorically been stated that on

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

referred to her because of suspected “Tubercular Peritonitis”

of the lower abdomen and “renal failure”.  On examination of

Priya Malhotra, Dr.  Pratima Prasad noticed that the patient

was  not  getting  menstruation  for  the  last  three  months

11

although before  that  period,  her  menstruation periods  were

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

Prasad advised Ultrasonograph of the pelvis and laparoscopy

to confirm the existence of tuberculosis of the gynaecological

parts.   Dr.  Pratima  Prasad  stated  that  laparoscopy  was

considered  necessary  for  confirmation  of  the  diagnosis  of

tuberculosis of the abdomen and to get the histopathological

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

laparoscopy  was  done.   The  laparoscopy  was  not  contra-

indicated  from the  various  investigation  reports  and check-

ups  carried  out  on  the  patient  prior  to  09.08.1989.   The

Commission  has  in  its  order  extracted  the  necessary

averments  made  by  Dr.  Pratima  Prasad  in  her  written

statement  in  regard  to  the  procedure  and  method  of

conducting laparoscopy which, in our view, are not necessary

to be repeated in this judgment for unnecessarily burdening

the  record.   The  record  produced  before  the  Commission

would  show  that  in  the  operation  theatre,  the  patient  was

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

Anaesthesiologist and they had taken conscious decision that

12

the  laparoscopy  was  not  contra-indicated  in  any  way.

Dr.  Pratima  Prasad  felt  that  an  attempt  to  conduct

laparoscopy had to be abandoned and it became necessary to

perform the laparotomy to get tissue for biopsy which was the

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

the  perforations  caused  during  laparoscopy  were  duly

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

patient had active military tuberculosis.  Peritoneum and all

the abdominal structures were adhered together.  It was also

noticed that the intestines were perforated due to introduction

of  laparoscopy  trocar  and  cannula.   It  was  stated  by

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

peritoneal biopsy and sutured six intestinal perforations.  The

laparotomy was performed with complete success and did not

create any complication to the patient.   Dr.  Pratima Prasad

also  submitted  in  her  statement  that  it  was  conclusively

proved  by  the  post-mortem examination  that  the  sutured

intestines had healed and had not developed any leak.    

10) Dr.  Pratima Prasad  has  strongly  refuted  the  allegation

made  by  the  appellant  that  Tubercular  Peritonitis  had

13

developed  due  to  laparoscopy.   She  stated  that  Tubercular

Peritonitis  is  a  chronic  disease  which  could  not  suddenly

develop.   It  was  already  present  when  laparoscopy  was

conducted.   Dr.  Pratima  Prasad  also  stated  in  the  written

statement that the allegations of the appellant that there was

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

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

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

Joshi had himself  suggested laparoscopy on the patient.   It

was  her  statement  that  medical  opinion  was  clear  that

tuberculosis of intestines could be detected best and easily by

performing laparoscopy.  The allegations of the appellant that

the  right  lung  of  Priya  Malhotra  was  collapsed  due  to  the

laparoscopy  has  empathetically  been  denied  by  her.

Dr.  Pratima  Prasad  pleaded  that  during  laparoscopy  the

direction  of  the  trocar  and  cannula  were  towards  pelvis

(downward  direction)  eliminating  any  chance  of  causing

pneumothorax or collapse of the lung.  The appellant could

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

14

statement  made  by  Dr.  Pratima  Prasad  in  her  written

statement.

11) In  the  light  of  the  unrebutted  and  uncontroverted

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

has  rightly  come  to  the  conclusion  that  the  appellant  has

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

was negligent or careless in performing laparoscopy upon the

deceased.  

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

team  of  doctors  had  discarded  the  line  of  treatment  being

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

resulted in the death of Priya Malhotra.  The appellant could

not even remotely substantiate  this allegation made against

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

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

treatment being taken and adopted by Dr. Ramamoorthy and

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

stated that she had no complaint against the line of treatment

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

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

15

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

writing  recommended  laparoscopy  and  the  said

recommendation was placed on record of the Commission by

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

doctors-respondents  who  were  involved  in  the  treatment  of

deceased Priya Malhotra have established on record that the

course of treatment pursued by them in the Bombay Hospital

was in no way contradictory or against the treatment given by

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

the patient and carried the investigation as a result thereof it

was found that the patient was suffering from chronic renal

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

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

16.07.1989,  a  copy  thereof  has  been  produced  before  the

Commission duly signed by Dr. Ramamoorthy.  The contents

of  the  “Unit  Note”  are  extracted  by  the  Commission  in  its

order.  

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

examined Priya Malhotra on 24.07.1989 and found the patient

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

16

informed that the patient had been undergoing haemodialysis

since  about  18.07.1989.   On  21.07.1989,  on  clinical

examination and going through the reports of the investigation

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

suffering  from  end-stage  renal  failure  and  would  require

kidney transplant for her survival.  When various tests were

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

suffering  from  abdominal  tuberculosis.   In  view  of  the

suffering  from  abdominal  tuberculosis  and  also  of  the

gastrointestinal problems which had gone out of proportion to

the Uremia, the expert doctors-respondents had decided not

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

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

would not be advisable to carry out kidney transplant, having

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

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

patient and the appellant and both of them were informed that

renal  failure  cases  stood  surgery  bodily  and  were  likely  to

develop complications following minor surgery and might even

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

17

performed  diagnostic  peritoneal  tap  for  ascetic  fluid

examination and also to judge whether laparoscopy would be

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

patient  and  also  the  pathological  and  other  reports  of  the

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

conclusion that there was no better method available for the

patient than to perform laparoscopy.  Dr. Ramamoorthy also

examined patient on 04.08.1989 and approved the decision of

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

administration of rifampicin/pyrazinamide.  Dr. Ramamoorthy

had also insisted upon decision to do histopathological tissue

diagnosis to confirm existence of tuberculosis.

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

Malhotra  was  admitted  to  Bombay  Hospital  under  the

observation of Dr. Ramamoorthy and was later being treated

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

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

08.09.1989  contacted  her  on  telephone  and  gave  her  the

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

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

18

special training to perform tissue biopsy by laparoscopy was

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

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

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

Surgeon,  who  is  specialized  in  kidney  transplant  surgery.

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

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

Pratima Prasad.  On 21.07.1989, the patient was referred by

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

On  detailed  clinical  examination  and  going  through  the

records of the investigation done upto 21.07.1989, Dr. Vasant

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

stage  of  renal  failure  and  as  such  she  needed  kidney

transplant  for  her  survival  as  after  multiple  sessions  of

haemodialysis  the  abdomen  did  not  settle  down  and  also

because  of  occurrence  of  recurrent  features  of  intestinal

obstruction, it was decided not to have surgical intervention in

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

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

Dr. Ramamoorthy that the issue of kidney transplantation did

19

not  arise  till  abdominal  tuberculosis  would  get  healed

completely.

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

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

divergence  of  opinion  between  a  team  of  specialists  and

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

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

treatment  adopted  by  doctors-respondents  in  this  case.

Doctors  had  informed  the  patient  and  her  relatives  well  in

time that condition of Priya Malhotra was critical and kidney

transplantation could not be done nearly for one year and also

the consequence of the renal failure suffered by the patient.

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

laparoscopy had failed in spite of two attempts and it became

all the more important to perform laparotomy to get tissue for

biopsy  and  to  avoid  any  further  injury  that  might  have

occurred  due  to  the  attempt  at  laparoscopy.   On  opening

abdomen of the patient it became clear that the patient had

extensive  chronic  peritonitis  plastering  the  whole  intestinal

tract  and  intestines  were  perforated  due  to  introduction  of

20

laparoscopic  pressure  and  cannula.   Dr.  Vasant  S.  Sheth

performed  peritoneal  biopsy  and  sutured  six  intestinal

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

the  initial  stages  she  was  doing  well  but  unfortunately  on

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

jaundice probably due to anti-tuberculosis drugs which had to

be  stopped.   The  material  on  record  would  show  that  on

20.08.1989,  the  patient  developed  a  fluid  leak  from  the

abdomen due to the leakage of ascites or beginning of fecal

fistula.  The condition of Priya Malhotra started deteriorating

day by day despite  best  care and attention of specialists in

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

deteriorating  condition  of  the  patient,  but  the  appellant

abruptly  instructed  the  doctors  to  stop  haemodialysis

treatment to the patient.  Because of the persisting demand of

the appellant, haemodialysis was stopped which according to

the  respondents  resulted  in  the  untimely  death  of  Priya

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

of treatment of Medical Research Centre of Bombay Hospital

placed  on  record  of  the  Commission  would  reveal  that  on

21

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

also recorded thereon “discussed with relatives and explained

the consequences  of  not draining of  pneumothorax and not

doing  haemodialysis”.   The  appellant  did  not  permit  such

treatment and gave in writing “I  refused Haemodialysis  and

Pneumothorax on my risk”.  

16)  In the facts and circumstances noticed hereinabove, the

fact  remains  that  when  Priya  Malhotra  was  brought  to

Bombay  Hospital  for  treatment  her  health  was  in  very  bad

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

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

recorded  that “patient  was sick since  four  months by loose

motion, vomiting and she was admitted in Bombay Hospital

since 14.07.1989.  She was operated on 09.08.1989 and died

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

renal failure”.     

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

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

Court in the decisions cited by the learned counsel.

22

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

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

had  the  occasion  to  deal  with  and  decide  the  liability  of

doctors  in  a  death  case  arising  due  to  criminal  medical

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

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

was observed that in the law of negligence, professionals such

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

category of persons professing some special skill or as skilled

persons generally. Any task which is required to be performed

with a special skill would generally be admitted or undertaken

to be performed only if the person possesses the requisite skill

for performing that task. Any reasonable man entering into a

profession which requires a particular level of learning to be

called  a  professional  of  that  branch,  impliedly  assures  the

person dealing with him that the skill which he professes to

possess shall be exercised with reasonable degree of care and

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

physician would not assure the patient of full recovery in every

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

23

of  surgery  would  invariably  be  beneficial,  much less  to  the

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

assurance  which  such  a  professional  can  give  or  can  be

understood  to  have  given  by  implication  is  that  he  is

possessed of the requisite skill  in that branch of profession

which he is practising and while undertaking the performance

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

with  reasonable  competence.  This  is  all  what  the  person

approaching  the  professional  can  expect.  Judged  by  this

standard, the professional may be held liable for negligence on

one  of  two  findings:  either  he  was  not  possessed  of  the

requisite  skill  which he professed to have possessed,  or, he

did  not  exercise,  with  reasonable  competence  in  the  given

case,  the  skill  which  he  did  possess.  The  standard  to  be

applied  for  judging,  whether  the  person  charged  has  been

negligent  or  not,  would  be  that  of  an  ordinary  competent

person exercising  ordinary skill  in that  profession.  It  is  not

possible for every professional to possess the highest level of

expertise or skills in that branch which he practices. A highly

skilled professional may be possessed of better qualities, but

24

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

performance  of  the  professional  proceeded  against  on

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

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

the subject of negligence in the context of medical profession

necessarily  calls  for  treatment  with a difference.  There  is  a

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

untoward event, a tendency which is closely linked with the

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

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

would reveal that the background to a mishap is frequently far

more  complex  than  may  generally  be  assumed.  It  can  be

demonstrated  that  actual  blame  for  the  outcome  has to  be

attributed  with  great  caution.  For  a  medical  accident  or

failure,  the  responsibility  may  lie  with  the  medical

practitioner, and equally it may not. The inadequacies of the

system, the specific circumstances of the case, the nature of

human  psychology  itself  and  sheer  chance  may  have

combined  to  produce  a  result  in  which  the  doctor's

contribution is either relatively or completely blameless. The

25

human body and its  working  is  nothing less  than a  highly

complex machine.  Coupled with the complexities  of  medical

science,  the  scope  for  misimpressions,  misgivings  and

misplaced  allegations  against  the  operator,  i.e.  the  doctor,

cannot be ruled out.  One may have notions of best or ideal

practice  which are different  from the reality of how medical

practice is carried on or how the doctor functions in real life.

The factors of pressing need and limited resources cannot be

ruled out from consideration. Dealing with a case of medical

negligence needs a deeper understanding of the practical side

of medicine.  The purpose of holding a professional liable for

his act or omission, if negligent, is to make life safer and to

eliminate the possibility of recurrence of negligence in future.

The human body and medical science, both are too complex to

be  easily  understood.  To  hold  in  favour  of  existence  of

negligence, associated with the action or inaction of a medical

professional,  requires  an  in-depth  understanding  of  the

working of a professional as also the nature of the job and of

errors committed by chance, which do not necessarily involve

the element of culpability.

26

18.2)  Negligence  in  the  context  of  the  medical  profession

necessarily calls for a treatment with a difference.   To infer

rashness  or  negligence  on  the  part  of  a  professional,  in

particular a doctor, additional considerations apply. A case of

occupational  negligence is different from one of  professional

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

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

professional. So long as a doctor follows a practice acceptable

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

for negligence merely because  a better alternative  course or

method of treatment was also available or simply because a

more skilled doctor would not have chosen to follow or resort

to that practice or procedure which the accused followed.  The

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

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

accepted as decisive of the standard of care required both of

professional  men  generally  and  medical  practitioners  in

particular, and holds good in its applicability in India.  In tort,

it is enough for the defendant to show that the standard of

care and the skill attained was that of the ordinary competent

27

medical  practitioner  exercising  an  ordinary  degree  of

professional  skill.   The  fact  that  a  defendant  charged  with

negligence  acted  in  accord  with  the  general  and  approved

practice  is  enough  to  clear  him  of  the  charge.   It  is  not

necessary for every professional to possess the highest level of

expertise in that branch which he practices. Three things are

pertinent  to  be  noted.  Firstly,  the  standard  of  care,  when

assessing  the  practice  as  adopted,  is  judged  in the  light  of

knowledge available at the time (of the incident), and not at

the  date  of  trial.  Secondly,  when  the  charge  of  negligence

arises  out  of  failure  to  use  some particular  equipment,  the

charge would fail if the equipment was not generally available

at that point of time (that is, the time of the incident) on which

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

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

is whether those precautions were taken which the ordinary

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

special  or  extraordinary  precautions  which  might  have

prevented the particular happening cannot be the standard for

28

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

18.3)   Again, it has been held that indiscriminate prosecution

of  medical  professionals  for  criminal  medical  negligence  is

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

A medical practitioner faced with an emergency ordinarily tries

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

gain anything by acting with negligence or by omitting to do

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

clearly  make  out  a  case  of  negligence  before  a  medical

practitioner is charged with or proceeded against criminally. A

surgeon with shaky hands under fear of legal action cannot

perform  a  successful  operation  and  a  quivering  physician

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

the  hands  be  trembling  with  the  dangling  fear  of  facing  a

criminal  prosecution  in  the  event  of  failure  for  whatever

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

surgeon successfully  wield his life-saving scalpel  to perform

an  essential  surgery,  nor  can  a  physician  successfully

administer the life-saving dose of medicine. Discretion being

29

the  better  part  of  valour,  a  medical  professional  would  feel

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

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

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

towards saving the subject and facing a criminal prosecution if

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

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

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

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

while dealing with the case of medical negligence by the doctor

in  conducting  sterilisation  operations,  reiterated  and

reaffirmed that unless negligence of doctor is established, the

primary  liability  cannot  be  fastened  on  the  medical

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

no. 7)

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

30

popularly known as Bolam’s test, in its applicability to India”.  

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

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

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

the respondents.  The allegations made in the complaint do

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

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

that  the  doctors  named  in  the  complaint  are  not  qualified

doctors and specialized in their respective fields to treat the

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

the patient are skilled and duly qualified specialists in their

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

of Priya Malhotra by joining their hands and heads together

and performed their professional duties as a team work.  The

appellant  has  not  challenged  the  post mortem  report  dated

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

stated  that  before  Priya  Malhotra  was  admitted  to  Bombay

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

vomiting.   A  copy  of  post mortem  report  of  deceased  Priya

31

Malhotra  placed  on  record  of  the  Commission  by

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

under:  

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

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

Malhotra was due to peritonitis with renal failure.

20) On  our  independent  examination  of  the  order  of  the

Commission  and  other  entire  material  on  record  discussed

hereinabove, we find that the Commission has properly and

rightly appreciated the entire factual and legal aspects of the

matter and there is no infirmity or perversity in the findings

recorded by the Commission which warrants any interference

in this appeal.   

32

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

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

made on behalf of the appellant.

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

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

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

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

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

New Delhi, March 24, 2009.

33

34