REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1385 OF 2001

Kusum Sharma & Others    .. Appellants

Versus

Batra Hospital & Medical Research Centre & Others  .. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and order  

dated  30th August,  2000  passed  by  the  National  Consumer  

Disputes  Redressal  Commission,  New  Delhi  (for  short,  

‘National Commission’) in Original Petition No.116 of 1991.

2. The appellants filed a complaint under section 21 of the  

Consumer  Protection  Act,  1986  claiming  compensation  of  

Rs.45  lakhs  attributing  deficiency  in  services  and  medical  

negligence in the treatment of the deceased Shri R.K. Sharma  

(who was the husband of appellant no.1, Kusum Sharma and  

the father of appellant nos. 2 and 3).

3. Brief facts which are necessary to dispose of this appeal  

are as under:-

4. Late Shri R.K. Sharma was a Senior Operations Manager  

in the Indian Oil Corporation (Marketing Division).   In June  

1989,  he  developed blood pressure.  He  was very  obese.  He  

complained  of  swelling  and  breathlessness  while  climbing  

stairs. He visited Mool Chand Hospital on 10.12.1989 but no  

diagnosis could be made. The Indian Oil Corporation referred  

him to Batra Hospital on 14.3.1990 where he was examined  

by  Dr.  R.K.  Mani,  respondent  no.2  and  Dr.  S.  Arora  who  

advised him to get admitted for Anarsarca (Swelling).

5. On  18.3.1990,  Shri  Sharma  was  admitted  in  Batra  

Hospital.  On 20.3.1990, an ultrasound of abdomen was done  

and  the next day, i.e., on 21.3.1990, a C.T. scan of abdomen  

was done and it was found that there was a smooth surface  

mass in the left adrenal measuring 4.5 x 5 cm and that the  

right  adrenal  was  normal.   Surgery  became  imperative  for  

removing  the  left  adrenal.  The  deceased,  Shri  Sharma  and  

appellant no.1 were informed by Dr.  Mani,  respondent no.2  

that it was well encapsulated benign tumor of the left adrenal  

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of  less  than 5 cm in size  which could be taken out  by  an  

operation.  It was decided to carry out the surgical operation  

for the removal of abdominal tumor. On 2.4.1990, the doctor  

obtained  consent  from  the  appellants  for  the  operation  of  

removal of abdominal tumor.  On test, the tumor was found to  

be  malignant.   The  treatment  for  malignancy  by  way  of  

administering Mitotane could not be given as it was known to  

have side effects.

6. The surgery was carried out  on 2.4.1990 by Dr.  Kapil  

Kumar, respondent no.3.  During the surgery, the body of the  

pancreas was damaged which was treated and a drain was  

fixed  to  drain  out  the  fluids.   According  to  the  appellants,  

considerable pain, inconvenience and anxiety were caused to  

the deceased and the appellants as the flow of fluids did not  

stop.  After another expert consultation with Dr.  T.K. Bose,  

respondent  no.4  a  second  surgery  was  carried  out  on  

23.5.1990 in Batra Hospital by Dr. Bose assisted by Dr. Kapil  

Kumar.

7. Shri Sharma was fitted with two bags to drain out the  

fluids and in due course, wounds were supposed to heal inside  

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and the fluid was to stop. The deceased was discharged on  

23.6.1990 carrying two bags on his body, with an advice to  

follow up and for change of the dressing. The deceased next  

visited Batra Hospital only on 31.8.1990 and that too to obtain  

a Medical Certificate from Dr. Mani, respondent no.2.   

8. On  9.10.1990,  Shri  Sharma  vomited  at  home  and  

arrangements for shifting him to the Batra Hospital were made  

and the Hospital’s ambulance  sent by Dr. Mani.  Shri Sharma  

died in the  hospital  on 11.10.1990 on account of  ‘pyogenic  

meningitis’.

9. It is pertinent to mention that after the discharge from  

Batra Hospital on 23.6.1990, the deceased wrote a letter on  

26.6.1990 to his employer narrating the agony and the pain he  

underwent at the hands of the doctors in Batra Hospital.

10. The deceased, on the suggestion of Dr. Bose, respondent  

no.4 visited Modi Hospital on 10.7.1990 where Dr. Bose was a  

Consulting  Surgeon  for  change  of  dressing  after  17  days.  

Respondent nos. 2 and 3,  namely, Dr. Mani and Dr. Kapil  

Kumar visited the residence of the deceased on 14.7.1990 and  

found him in a bad condition and asked him to go to AIIMS  

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where he was admitted on 22.7.1990 and treatment was given  

for pancreatic fistula and chronic fistula. He was discharged  

on 26.7.1990 with an advice to follow up in the O.P.D.  The  

deceased again  went  to  Mool  Chand Hospital  on 17.8.1990  

with  pancreatic  and feacal  fistula  which was dressed.   The  

deceased  was  discharged  from  Mool  Chand  Hospital  on  

31.8.1990.  The deceased went to Jodhpur on 29.9.1990 and  

on 30.9.1990 he had to be admitted in the Mahatma Gandhi  

Hospital at Jodhpur where he was diagnosed with having post-

operative  complications  of  Adrenoloctomy  and  Glutteal  

abscess.   The  deceased  was  discharged  from  there  on  

3.10.1990 with an advice to get  further  treatment at  AIIMS  

and when the deceased again went to AIIMS on 8.10.1990, Dr.  

Kuchupillai,  a senior doctor at AIIMS wrote on a slip ‘to be  

discussed in the Endo-Surgical Conference on 8.10.1990’.   

11. The  appellants  after  the  death  of  Shri  Sharma filed  a  

complaint under section 21 of the Consumer Protection Act,  

1986 before the National Commission claiming compensation  

attributing deficiency in services and medical negligence in the  

treatment of the deceased Shri Sharma.    

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12. The appellants attributed death of Shri Sharma because  

of negligence of the doctors and the hospital.  The appellants  

alleged that the informed consent was completely lacking in  

this case.  The appellants also alleged that the only tests done  

before  operation  to  establish  the  nature  of  tumor  were  

ultrasound  and  C.T.  scan  which  clearly  showed  a  well  

capsulated tumor of the size 4.5 x 5 cm. in the left adrenal  

and the right adrenal was normal.    

13. The  appellants  alleged that  the  deceased Shri  Sharma  

had  no  access  whatsoever  to  any  of  the  hospitals  records  

before filing the complaint.   

14. The  appellants  also  alleged that  there  was  nothing  on  

record  to  conclusively  establish  malignancy  of  the  tumor  

before  the operation was undertaken.   The appellants also  

had the grievance that they were not told about the possible  

complications of the operation.  They were told that it was a  

small and specific surgery, whereas, the operation lasted for  

six hours.  The appellants alleged that pancreatic abscess was  

evident as a result of pancreatic injury during surgery.  The  

appellants further alleged that there was nothing on record to  

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show that Dr. Kapil Kumar, respondent no. 3 possessed any  

kind  of  experience  and  skill  required  to  undertake  such  a  

complicated operation.   

15. The appellants also had the grievance that they were not  

informed in time of the damage caused to the body of pancreas  

and the removal of the spleen.   

16. According  to  the  appellants,  the  ‘anterior’  approach  

adopted  at  the  time  of  first  surgery  was  not  the  correct  

approach.   Surgery  should  have  been  done  by  adopting  

‘posterior’  approach for removal  of left  adrenal  tumor.   Dr.  

Kapil  Kumar,  respondent  no.  3  after  the  first  operation  on  

2.4.1990 told the appellants that the operation was successful  

and  the  tumor  was  completely  removed  which  was  in  one  

piece, well  defined and no spreading was there.    After  the  

surgery, blood was coming out in a tube which was inserted  

on the left side of the abdomen. On specific query made by the  

deceased and appellant no.1,  respondent nos.  2 and 3 told  

them  that  the  pancreas  was  perfectly  normal  but  during  

operation on 2.4.1990, it was slightly damaged but repaired  

instantly, hence there was no cause of any anxiety.  When the  

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fact of damage to pancreas came to the notice of the deceased,  

he asked for the details which were not given.   The appellants  

alleged  that  the  tumor  taken  out  from  the  body  was  not  

malignant.   

17. The  complaint  of  the  appellants  was  thoroughly  

examined and dealt with by the National Commission.   The  

National  Commission  had  decided  the  entire  case  of  the  

appellants in the light of the law which has been crystallized  

by a number of cases decided by this Court. Some of them  

have been extensively dealt with by the Commission.

18. The allegations in the complaint were strongly rebutted  

by Dr. Kapil Kumar, respondent no. 3.  Dr. Kapil stated in his  

affidavit  that  the  anterior  approach  was  preferred  over  the  

posterior approach in the suspected case of cancer, which was  

the case of Shri Sharma.  The former approach enables the  

surgeon to look at liver, the aortae area, the general spread  

and  the  opposite  adrenal  gland.  The  risk  involved  was  

explained  to  the  patient  and  the  appellants  and  they  had  

agreed to the surgery after due consultation with the family  

doctor.

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19. With  the  help  of  medical  texts  in  support  of  adopting  

‘anterior’ approach, respondent no. 3 mentioned as under:

“(i) “The  ‘anterior’  approach  for  adrenalectomy  is  mandatory  whenever  optimum  exposure  is  required  or  when  exploration  of  the  entire  abdomen  is  necessary.   Therefore,  this  approach is used in patients with adrenal tumours  >4  cm  in  diameter,  or  in  patients  with  possibly  malignant  tumours  of  any  size,  such  as  pheochromocytoma or adrenocortical carcinoma…..

Resection  of  the  left  adrenal  gland  requires  mobilization of the spleen and left colon.  The lateral  peritoneal  attachments  of  the left  colon are freed,  initially.  Then the spleen is scooped out from the  left  upper  guardant  medially  and  the  avascular  attachments between the spleen and diaphragm are  divided.  The spleen, stomach, pancreatic tail and  left  colon  are  retracted  medially  en  bloc  to  the  superior mesenteric vessels.  The left adrenal gland  is  exposed  splendidly  in  this  manner”.   –  Peritoneum,  Retroperitoneum  and  Mesentery  –  Section IV.

(ii) “Adrenal  operations.  Surgery  should  be  initial  treatment  for  all  patients  with  Cushing  syndrome  secondary  to  adrenal  adenoma  or  carcinoma.  Preoperative radiologic lateralization of  the  tumor  allows  resection  via  a  unilateral  flank  incision.  Adrenalectomy  is  curative.  Postoperative  steroid replacement therapy is necessary until the  suppressed gland recovers (3-6 months).

Adrenal carcinoma should be approached via a  midline  incision  to  allow  radical  resection,  since  surgery  is  only  hope  for  cure”.   –  Principles  of  Surgery, 18th Edition Page 560.

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(iii) “Adrenocortical  malignancies  are  rare,  often at advanced stage when first discovered and  should be approached using an anterior approach  to  allow  adequate  exposure  of  the  tumor  and  surrounding soft  tissue and organs”.   –  Technical  Aspects of Adrenalectomy – By Clive S. Grant and  Jon A. Van Heerden – Chapter Thirty Five.”

20. The  medical  texts  quoted  above  speak  of  both  the  

approaches for  adrenaloctomy.   Nowhere the  appellant  no.1  

has  been  able  to  support  her  contention  that  posterior  

approach  was  the  only  possible  and  proper  approach  and  

respondent  no.  3  was  negligent  in  adopting  the  anterior  

approach.   

21. Apart  from  the  medical  literature,  Dr.  N.  K.  Shukla,  

Additional Professor at AIIMS and a well-know surgeon stated  

in unequivocal terms in response to a specific question from  

the appellant no.1 that for malignant tumors, by and large, we  

prefer anterior approach.  

22. Dr. Nandi, Professor and Head of Department of Gastro-

Intestinal Surgery at AIIMS also supported ‘anterior’ approach  

and confirmed and reconfirmed adoption of ‘anterior’ approach  

in view of inherent advantages of the approach.  

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23. In  view  of  the  medical  literature  and  the  evidence  of  

eminent doctors of AIIMS, the National Commission did not  

find any merit in the allegations levelled.

24. According to the appellants, Dr. Bose, respondent no. 4,  

who performed the second surgery on 23.5.1990 did not follow  

the advice of Dr. Nandi, Professor and the Head of Department  

of Gastro-Intestinal Surgery at  AIIMS.  Dr. Nandi had advised  

placing of feeding tube at a designated place, but this was not  

done.

25. Dr. Bose, Respondent no. 4 stated in his affidavit  that  

there are three well known alternative methods of food supply  

of  nutrition  minimizing  any  leakage  of  enzymes  from  the  

pancreas.  Any of the alternative methods could be adopted  

only  after  opening  the  stomach  and  this  is  precisely  what  

respondent no. 4 did,  i.e.  cleared the area of abscess,  dead  

and  other  infective  tissues  and  inserted  a  second  tube  for  

drainage  of  fluid in the affected area and in the pancreatic  

duct. Respondent no. 4 also inserted a second tube connecting  

the  exterior  of  the  abdomen  with  the  affected  part  of  the  

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pancreas  and  the  abdomen  for  drainage  and  clearance  in  

support of the first tube inserted for drainage.   According to  

respondent  no.  4,  this  was the best course which could be  

done keeping in view the inside status  of the stomach of the  

deceased and that was done.    

26. The National Commission did not find any merit in this  

complaint of the appellants.   

27. Another  complaint  made  by  the  appellants  was  with  

regard to ‘Gluteal abscess’ which was attributed to ‘pyogenic  

meningitis’ resulting in the death of Shri Sharma which was  

first  observed  in  the  Medical  College  Hospital  at  Jodhpur,  

where the deceased had gone in connection with performing  

certain rites in connection with the death of his mother-in-law.  

The Gluteal abscess was drained by a simple incision.   He  

was discharged from there on 3.10.1990 with an advice to go  

to  AIIMS,  New  Delhi  and  meet  Dr.  Kuchupillai,  the  

Endoconologist.  According to the doctor, there was not even a  

whisper  of  any  incision  or  draining  of  gluteal  abscess.  The  

Essentiality  Certificate  makes  it  clear  that  no  incision  was  

made to drain out gluteal abscess.

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28. The appellants aggrieved by the judgment and order of  

the National Commission filed the present appeal before this  

court.

29. This court issued notice and in pursuance to the notice  

issued  by  this  court,  a  counter  affidavit  on  behalf  of  

respondent no.1 has been filed by Dr. Ranbir Kumar Gupta.  It  

is  mentioned in the  affidavit  that although the respondents  

fully  sympathized with the appellants’  unfortunate loss,  the  

respondents are constrained to submit that the appellants had  

presented  a  malicious,  fabricated  and  distorted  account  to  

create a false impression that the respondents were guilty of  

negligence in treating late Shri R.K. Sharma.   

30. The respondents also submitted that the appellants have  

ignored  the  fact  that  the  medicine  is  not  an  exact  science  

involving  precision  and  every  surgical  operation  involves  

uncalculated  risks  and  merely  because  a  complication  had  

ensued, it does not mean that the hospital or the doctor was  

guilty of negligence.  A medical practitioner is not expected to  

achieve success in every case that he treats. The duty of the  

Doctor  like  that  of  other  professional  men  is  to  exercise  

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reasonable  skill  and care.   The  test  is  the  standard  of  the  

ordinary skilled man.  It is further submitted in the counter  

affidavit that the hospital and the doctors attended late Shri  

Sharma  with  utmost  care,  caution  and  skill  and  he  was  

treated  with  total  devotion  and  dedication.   Shri  Sharma’s  

death was attributable to the serious disease with which he  

was suffering from.  It is also mentioned that the conduct of  

the deceased himself was negligent when he was discharged  

on 23.6.1990. The doctors specifically  advised him “Regular  

Medical Follow Up” which the deceased failed to attend.  In  

fact,  subsequently,  it  was respondent no.4 who called upon  

the deceased and persuaded him to visit the Modi Hospital for  

a change of  dressing.   The Fitness Certificate  issued to the  

deceased also bore the endorsement “he would need prolonged  

and regular follow up”.  However, the deceased did not make  

any effort and was totally negligent.

31. According to the affidavit, the deceased was admitted on  

18.3.1990  in  Batra  Hospital.   Dr.  R.K.  Mani  recommended  

certain  investigations  such  as  abdominal  Utrasound,  Echo-

cardiogram Blood Tests etc. On 20.3.1990, Dr. Mani ordered a  

C.T.  Scan  of  the  abdomen  for  a  suspected  lump  in  the  

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abdomen.   The  C.T.  abdomen  revealed  a  large  left  adrenal  

mass.   Accordingly,  the  following note  was recorded by  Dr.  

R.K. Mani in the case sheet on 21.3.1990:-

“CT  abdomen  reveals  a  large  left  adrenal  mass.  Evidently  there  is  a  secreting  adrenal  tumour.  Patient needs full work up re hormonal status and  CT  Head  Scan.”   The  same  day  Dr.  R.K.  Mani  referred the case to Dr. C.M. Batra, Endocrinologist  and  sought  Dr.  Batra’s  opinion  on  the  diagnosis  made by him that Anasrarca was attributable to the  Adrenal tumour.   Dr. Mani also referred Shri R.K.  Sharma to a Dermatologist.  That after reviewing the  case  Dr.  C.M.  Batra  agreed  with  Dr.  Mani  that  Anarsarca  was  due  to  the  Adrenal  Tumour.  Dr.  Batra  was  also  of  the  opinion  that  the  Adrenal  Tumour could be due to either Adrenal or Adrenal  Carcinoma (i.e. cancer).  Dr. Batra recommended a  C.T. Thorax Bone and Skeletol survey.   

The Dermatologist Dr. Kandhari reported that Shri  R.K.  Sharma  had  a  fungal  infection.   After  the  reports  of  all  the  tests  and  the  report  of  the  hormonal  assays  had  been  received,  respondent  no.2 came to a confirmed diagnosis that Shri R.K.  Sharma  had  a  secreting  adrenal  tumour.   The  patient was informed that surgery for removal of an  adrenal  tumour was planned.  Appellant  no.1  was  also informed that the tumour was suspected to be  malignant.   Mrs.  Kusum Sharma told  respondent  no.2 that one of her relations was a doctor working  in Jodhpur Medical College and that she would like  to consult him.  The said relation of Smt. Kusum  Sharma came down to  Delhi,  examined Shri  R.K.  Sharma  and  went  through  all  the  reports.  Thereafter,  Smt.  Kusum Sharma gave  consent  for  the surgery.  Dr. Kapil Kumar, who specializes in  surgical oncology, i.e., cancer surgery was asked to  operate upon Shri R.K. Sharma.  The risk involved  in the operation was explained to the petitioner, her  

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husband (now deceased) and their relative and they  agreed  after  due  consultation  with  their  family  doctor.”

32. Shri  Sharma  was  operated  on  2.4.1990  by  Dr.  Kapil  

Kumar,  respondent  no.3  and  the  adrenal  tumour  was  

removed.  During surgery it became necessary to remove the  

spleen of Shri R.K. Sharma.  The operation was successful.  

However,  the  tail  of  the  pancreas  was  traumatized  during  

retraction  as  Shri  R.K.  Sharma  was  extremely  obese.   On  

examination,  the  injury  to  the  pancreas  was  found  to  be  

superficial and non-ductal.  The damage to the pancreas was  

repaired immediately with interrupted non-absorbable sutures  

and  drains  were  placed.   The  injury  to  the  pancreas  was  

known  during  surgery  and  the  same  was  repaired  

immediately. It was clearly recorded in the operation transcript  

that the body of the pancreas was damaged on its posterior  

surface.   The  said  fact  was  recorded  in  the  discharge  

summary.

33. It is submitted that after the surgery Shri R.K. Sharma  

was  subjected  to  ultrasound  imaging  and  sonogram.   On  

26.4.1990 respondent no.2 ordered a CT Scan as he suspected  

the existence of a pancreatic abscess.  The CT Scan report was  

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suggestive  of  paripancreatic  inflammation  and  pancreatic  

abscess.  Thus the CT Scan merely confirmed the suspicion of  

appellant  no.1,  the  wife  of  Shri  R.K.  Sharma who was well  

aware of the injury to the pancreas and the possibility of there  

being a pancreatic abscess and she had long discussion with  

respondent nos.2 and 3 regarding the prognosis.  It is denied  

that the patient  and the appellants were assured that fluid  

discharge would stop within 2 or 3 days time or that it was  

normal complication after any surgery.

34. It is submitted that the tumour mass was sent for biopsy  

the same day i.e.  2.4.1990.   The  histopathology report  was  

received the next day and it recorded a positive finding of the  

tumour being malignant.  Since cases of adrenal cancer have a  

very poor prognosis,  six slides were sent to Sir Ganga Ram  

Hospital for confirmation.  The histopathology report from Sir  

Ganga  Ram  Hospital  also  indicated  cancer  of  the  adrenal  

gland.

35. It  is admitted that due to the insistence of the patient  

and  the  appellants  to  seek  expert  advice  of  the  All  India  

Institute  of  Medical  Science  the  patient  was  referred  to  Sir  

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Ganga  Ram Hospital  for  E.R.C.P.  Test.   After  the  CT  Scan  

report dated 26.4.1990 confirmed the existence of pancreatic  

abscess,  on 28.4.1990,  respondent  nos.2  and 3 sought  the  

advice of Dr. T.K. Bose, respondent no.4.  An E.R.C.P. test and  

Sonogram were recommended by respondent no.4 and it was  

again respondent no.4 who suggested that the opinion of Prof.  

Nandi  of  All  India  Institute  of  Medical  Sciences  be  sought.  

E.R.C.P. and Sonogram are sophisticated tests and the patient  

can hardly be expected to be aware of such procedures.  It is  

submitted that the E.R.C.P. test confirmed the initial diagnosis  

made by respondent nos. 2 and 3 that there being a leakage  

from the pancreatic duct and showed the exact site of leakage.  

Determination of exact site of leakage is one of the principal  

functions of the E.R.C.P. test.

36. In the counter-affidavit it is specifically denied that the  

deceased was dissatisfied with the treatment. In the affidavit,  

it  is  mentioned  that  Dr.  T.K.  Bose  and  Dr.  Kapil  Kumar  

adopted the procedure, which in their opinion was in the best  

interest of the patient, Shri Sharma.

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37. During the second operation on 23.5.1990 it was found  

that  there  was  matting  together  of  proximal  jejunal  loops  

(intestinal loops) in the left infra-colic compartment subjacent  

to  root  of  transverse  mescolon  and  it  was  technically  

hazardous to do feeding jejunostomy.  That is why a deviation  

was  made.   Dr.  T.K.  Bose  and  Dr.  Kapil  Kumar  were  not  

obliged to follow every detail of Dr. Nandi’s recommendation as  

appropriate decisions were to be made in accordance with the  

findings at surgery.  It would be pertinent to point out that Dr.  

Nandi’s  note was at best a theoretical  analysis whereas Dr.  

Bose was the man on the spot.  Matting of jejunal loops was  

not known to Dr. Nandi and came to be known only on the  

operation table.

38. It is submitted that the bleeding (hematemsia) was due to  

stress ulceration and not due to damage to the stomach by a  

Nasodudoenal  tube.  Such  bleeding  is  quite  common  after  

major surgery.  It is denied that fundus of the stomach was  

damaged  during  surgery  or  during  placement  of  the  

Nasodudoenal tube as alleged by the appellants. In fact, the  

site of surgery was nowhere near the fundus of the stomach.  

It is denied that any procedure adopted by Dr. Bose and Dr.  

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Kapil  Kumar  in  surgery  endangered  the  life  of  the  patient.  

Shri R.K. Sharma was discharged as his surgical wounds had  

healed and his overall condition was satisfactory.

39. It  is  submitted  that  after  his  discharge  from  Batra  

Hospital on 23.6.1990, Shri R.K. Sharma did not maintain any  

contact with the answering respondents till 9.10.1990 barring  

one visit to respondent no.2 on 31.8.1990 for the purpose of  

obtaining fitness certificate.  The answering respondent cannot  

be held responsible for any mishap, which might have taken  

place when the deceased Shri R.K. Sharma was being treated  

elsewhere.

40. It is further submitted that no request was received by  

respondent no.1 from AIIMS for supply of the case sheets or  

the tumour mass.  Had such a request been received the case  

sheets would have been sent to AIIMS forthwith.  The tumour  

mass  would  also  have  been  sent  subject  to  availability,  as  

generally  the  mass  is  not  preserved  beyond  a  period  of  4  

weeks. As a standard practice, case sheets are never given to  

patients as they contain sensitive information which can affect  

their psyche.

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41. It is submitted that no malafides can be attributed to the  

answering respondents for declining the request of Shri R.K.  

Sharma for handing over the entire mass of tumour.  Had the  

mass been available, it would have definitely been given.  As  

per  standard  practice,  specimens  are  discarded  after  one  

month and, therefore, the tumour mass was not available and  

as such could not be given to Shri R.K. Sharma.  All over the  

world the standard practice is to preserve slides and to use  

them for review.

42. The  Histopathology  report  from  Mool  Chand  Hospital  

recorded  the  presence  of  Mitosis,  which  are  indicative  of  

malignancy.  The Histopathology reports from Batra Hospital  

and Sir Ganga Ram Hospital clearly indicated the presence of  

malignancy, whereas the report from Mool Chand Hospital did  

not specifically indicate whether the tumour was malignant or  

benign.  Rather it was stated in the report that a follow up was  

required.

43. It  is  submitted  that  pyrogenic  meningitis  was  most  

probably  the  consequence  of  gluteal  abscess  for  which  the  

patient  had  not  received  any  proper  treatment  in  the  

21

proceeding  weeks.   It  was  only  when  the  patient  was  in  a  

critical  condition  that  he  was  brought  to  Batra  Hospital.  

However, at that stage the disease of the patient was too far  

advanced.

44. It is denied that pyrogenic Meningitis “is swelling in the  

brain due to the  spoiled  surgery and the unhealed wounds  

inside caused by the repeated insertions of tubes introducing  

infections.”   It  is  denied  that  surgery  was  spoiled  at  Batra  

Hospital.  Further when the deceased Shri R.K. Sharma was  

discharged, all his wounds had healed. Pyrogenic Meningitis is  

not swelling of the brain but inflammation of the covering of  

the  brain.   It  could  not  have  been the  consequence  of  the  

surgery or the pancreatic abscess.

45. In  the  discharge  summary  prepared  initially  it  was  

recorded specifically that the adrenal mass was malignant and  

that the patient should be started on Mitotane at the earliest  

after the period of recovery from the operation.  However, the  

appellants  had  requested  respondent  no.2  to  delete  all  

references  about  cancer  from  the  discharge  slip  as  her  

husband was likely to read the same.  She apprehended that  

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in  such  an  event  her  husband  would  become  mentally  

disturbed.  Having regard to the apprehension expressed by  

the  appellant  no.1,  Smt.  Kusum  Sharma,  respondent  no.2  

prepared a fresh discharge summary which did not contain  

any reference to cancer.  The diagnosis of cancer was not an  

afterthought.  The diagnosis of cancer was a considered one  

after two histopathological reports were received.  It is however  

denied that the patient was told that he was suffering from  

cancer.

46. It is also denied that Dr. Kapil Kumar lacks experience.  

On the contrary, Dr. Kapil Kumar has impressive credentials  

and  he  had  undertaken  training  in  the  well  known  Tata  

Cancer Hospital at Mumbai and he had adequate experience  

in handling such operations.

47. The learned counsel appearing for the appellants placed  

reliance on Spring Meadows Hospital & Another v. Harjot  

Ahluwalia  through  K.S.  Ahluwalia  & Another  (1998)  4  

SCC 39 and Dr. Laxman Balkrishna Joshi  v. Dr. Trimbak  

Bapu  Godbole  &  Anr.  AIR  1969  SC  128.   According  to  

respondent  no.1,  these  cases  have  no  application  to  the  

23

present case.  The facts in these cases are entirely different  

and the law of negligence has to be applied according to the  

facts of the case.   

48. According  to  Halsbury’s  Laws  of  England  Ed.4  Vol.26  

pages 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 (a)  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 (b) A  breach of any of these duties will support an action  for negligence by the patient (c).”

49. In a celebrated and oftenly cited judgment in  Bolam v.  

Friern Hospital Management Committee (1957) I WLR 582 :  

(1957) 2 All ER 118 (Queen’s Bench Division – Lord Justice  

McNair 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,  merely  because  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  

24

practitioner to follow one in preference to the other  accords  also  with  American  law;  See  70  Corpus  Juris  Secundum  (1951)  952,  953,  para  44.  Moreover, it seems that by American law a failure to  warn the patient of dangers of treatment is not, of  itself, negligence ibid. 971, para 48).

Lord Justice McNair  also observed :  Before I  turn  that,  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  doing  some  act  which  a  reasonable  man  in  the  circumstances would not do; and if that failure or  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 ordinary man.  But where you  get  a  situation  which  involves  the  use  of  some  special  skill  or competence, then the test whether  there has been negligence or not is not the test of  the  man  on  the  top  of  a  Claphm  omnibus,  becausehe  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 her exercises the ordinary skill  of  an  ordinary  competent  man  exercising  that  particular art.”

50. Medical science has conferred great benefits on mankind,  

but these benefits are attended by considerable risks.  Every  

surgical  operation is attended by risks.  We cannot take the  

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benefits without taking risks. Every advancement in technique  

is also attended by risks.

51. In Roe and Woolley v. Minister of Health (1954) 2 QB  

66, Lord Justice Denning said : ‘It is so easy to be wise after  

the event and to condemn as negligence that which was only a  

misadventure.   We  ought  to  be  on  our  guard  against  it,  

especially  in  cases  against  hospitals  and  doctors.   Medical  

science  has  conferred  great  benefits  on  mankind but  these  

benefits  are  attended  by  unavoidable  risks.   Every  surgical  

operation is attended by risks.  We cannot take the benefits  

without taking the risks.  Every advance in technique is also  

attended by risks.  Doctors, like the rest of us, have to learn  

by experience; and experience often teaches in a hard way.”

52. It was also observed in the same case that “We must not  

look at  the  1947 accident  with 1954 spectacles:”.   “But  we  

should be doing a disservice to the community at large if we  

were to impose liability on hospitals and doctors for everything  

that happens to go wrong.  Doctors would be led to think more  

of their own safety than of the good of their patients.  Initiative  

would  be  stifled  and confidence  shaken.  A  proper  sense  of  

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proportion  requires  us  to  have  regard  to  the  conditions  in  

which hospitals and doctors have to work.  We must insist on  

due  care  for  the  patient  at  every  point,  but  we  must  not  

condemn as negligence that which is only a misadventure.

53. In  Whitehouse v.  Jordon & Another  (1981)  1 All  ER  

267 House of Lords per Lord Edmund-Davies, Lord Fraser and  

Lord Russell:

“The test whether a surgeon has been negligent is  whether he has failed to measure up in any respect,  whether  in  clinical  judgment  or  otherwise,  to  the  standard of the ordinary skilled surgeon exercising  and professing to have the special skill of a surgeon  (dictum of McNair Jo. In Bolam v. Friern Hospital  Management  Committee  (1957)  2  All  ER  118  at  121).

54. In  Chin  Keow v.  Government  of  Malaysia &  Anr.  

(1967)  WLR  813:  the  Privy  Council  applied  these  words  of  

McNair 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 or not  is not the test of the man on the top of a Clapham  omnibus because he has not got this special skill.  The test is the standard of the ordinary skilled man  exercising and professing to have that special skill.”

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55. This  court  in  the  case  of  State  of  Haryana  v. Smt.  

Santra  (2000) 5 SCC 182 in the matter of negligence relied  

upon  the  case  of  Bolam v.  Friern  Hospital  Management  

Committee (supra) and on Whitehouse v. Jordan & Another  

(supra).

56. In Poonam Verma v. Ashwin Patel & Ors. (1996) 4 SCC  

332 where the question of medical negligence was considered  

in the context  of treatment of a patient,  it  was observed as  

under:-

“40. Negligence has many manifestations – it may  be  active  negligence,  collateral  negligence,  comparative  negligence,  concurrent  negligence,  continued  negligence,  criminal  negligence,  gross  negligence,  hazardous  negligence,  active  and  passive negligence, wilful or reckless negligence or  Negligence per se.”

57. In the instant case,  Dr.  Kapil  Kumar,  respondent no.3  

who performed the operation had reasonable  degree of  skill  

and  knowledge.   According  to  the  findings  of  the  National  

Commission,  he  cannot  be held guilty  of  negligence  by any  

stretch of imagination.

58. Negligence per-se is defined in Black’s Law Dictionary as  

under:-

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Negligence    per-se  : - Conduct, whether of action or  omission,  which  may  be  declared  and  treated  as  negligence without any argument or proof as to the  particular  surrounding  circumstances,  either  because  it  is  in  violation  of  a  statute  or  valid  municipal  ordinance,  or  because it  is  so palpably  opposed to the dictates of common prudence that it  can  be  said  without  hesitation  or  doubt  that  no  careful person would have been guilty of it.  As a  general rule, the violation of a public duty, enjoined  by law for the protection of person or property, so  constitutes.”

59. In  Bolam v.  Friern Hospital Management Committee  

(supra), Lord McNair said : “……….I myself would prefer to put  

it this way : A doctor is not guilty of negligence if he has acted  

in  accordance  with  a  practice  accepted  as  proper  by  a  

responsible body of medical men in that particular art”.  In the  

instant  case,  expert  opinion  is  in  favour  of  the  procedure  

adopted  by  Opposite  Party  No.3  at  the  time  of  Surgery  on  

2.4.90.

60. The  test  is  the  standard  of  ordinary  skilled  man  

exercising and professing to have that special skill.

61. In Roe and Woolley  (supra) Lord Denning said:

“We should be doing a dis-service to the community  at large if we were to impose liability on Hospitals  and  Doctors  for  everything  that  happens  to  go  wrong”.

29

62. Other rulings and judgments also hold and support this  

view. It  is on these judgments that the Supreme Court has  

relied to determine negligence or otherwise.

63. Judgment in the case of State of Haryana (supra) in the  

context of ‘Negligence  per se’, is not applicable in the instant  

case, as herein, there was no violation of public duty enjoined  

by  law.    The  term 'negligence'  is  used  for  the  purpose  of  

fastening the defendant with liability under the Civil Law and,  

at times, under the Criminal Law. It is contended on behalf of  

the respondents that in both the jurisdictions, negligence is  

negligence, and jurisprudentially no distinction can be drawn  

between  negligence  under  civil  law  and  negligence  under  

criminal law.

64. In  R.  v.  Lawrence,  [1981]  1  All  ER  974  (HL),  Lord  

Diplock spoke for a Bench of five judges and the other Law  

Lords  agreed  with  him.  He  reiterated  his  opinion  in  R.  v.  

Caldwell 1981(1) All ER 961 (HL) and dealt with the concept  

of recklessness as constituting  mens rea  in criminal law. His  

Lordship warded against adopting the simplistic approach of  

30

treating  all  problems  of  criminal  liability  as  soluble  by  

classifying  the  test  of  liability  as  being  "subjective"  or  

"objective", and said "Recklessness on the part of the doer of  

an  act  does  presuppose  that  there  is  something  in  the  

circumstances  that  would  have  drawn  the  attention  of  an  

ordinary prudent individual to the possibility that his act was  

capable of causing the kind of serious harmful consequences  

that  the  section  which  creates  the  offence  was  intended  to  

prevent,  and  that  the  risk  of  those  harmful  consequences  

occurring  was  not  so  slight  that  an  ordinary  prudent  

individual would feel justified in treating them as negligible. It  

is  only  when  this  is  so  that  the  doer  of  the  act  is  acting  

'recklessly' if, before doing the act, he either fails to give any  

thought  to  the  possibility  of  there  being  any  such  risk  or,  

having recognized that there was such risk, he nevertheless  

goes on to do it."

65. We are here concerned with the criminal negligence.  We  

have to find out that the rashness was of such a degree as to  

amount to taking a hazard knowing that the hazard was of  

such  a  degree  that  injury  was  most  likely  imminent.   The  

element of criminality is introduced by the accused having run  

31

the  risk  of  doing  such  an  act  with  recklessness  and  

indifference to the consequences.

66. Lord  Atkin  in  his  speech  in  Andrews v.  Director  of  

Public Prosecutions, [1937] A.C. 576, stated, "Simple lack of  

care -- such as will constitute civil liability is not enough; for  

purposes of the criminal law there are degrees of negligence;  

and a very high degree of negligence is required to be proved  

before  the  felony  is  established."  Thus,  a  clear  distinction  

exists between "simple lack of care" incurring civil liability and  

"very high degree of negligence" which is required in criminal  

cases. Lord Porter said in his speech in the same case -- "A  

higher  degree  of  negligence  has  always  been  demanded  in  

order to establish a criminal offence than is sufficient to create  

civil liability. (Charlesworth & Percy on Negligence (10th Edn.,  

2001) Para 1.13).

67. The aforementioned statement of law in Andrews’s case  

(supra)  has been noted for  approval  by  this  court  in  Syad  

Akbar v. State of Karnataka (1980) 1 SCC 30.  This court  

has dealt with and pointed out with reasons the distinction  

between negligence in civil law and in criminal law. The court  

32

opined that  there is  a  marked difference as to the effect  of  

evidence, viz. the proof, in civil and criminal proceedings. In  

civil  proceedings,  a  mere  preponderance  of  probability  is  

sufficient, and the defendant is not necessarily entitled to the  

benefit of every reasonable doubt; but in criminal proceedings,  

the persuasion of guilt must amount to such a moral certainty  

as  convinces  the  mind  of  the  Court,  as  a  reasonable  man,  

beyond all reasonable doubt. Where 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.

68. A three-Judge Bench of this court in Bhalchandra alias  

Bapu  & Another  v. State  of  Maharashtra AIR  1968  SC  

1319  has  held  that  while  negligence  is  an  omission  to  do  

something  which  a  reasonable  man,  guided  upon  those  

considerations  which  ordinarily  regulate  the  conduct  of  

human affairs, would do, or doing something which a prudent  

and reasonable man would not do; criminal negligence is the  

gross  and  culpable  neglect  or  failure to  exercise  that  

reasonable and proper care and precaution to guard against  

injury  either  to  the  public  generally  or  to  an  individual  in  

33

particular, which having regard to all the circumstances out of  

which the charge has arisen, it was the imperative duty of the  

accused person to have adopted.

69. This court in a landmark judgment in Jacob Mathew v.  

State of Punjab & Another  (2005)  6 SCC 1 while  dealing  

with  the  case  of  negligence  by  professionals  also  gave  

illustration of legal profession.  The court observed as under:-

“18.  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 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  and  exercised  with  reasonable  degree  of  care  and  caution. He does not assure his client of the result.  A lawyer does not tell his client that the client shall  win  the  case  in  all  circumstances.  A  physician  would  not  assure  the  patient  of  full  recovery  in  every  case.  A  surgeon  cannot  and  does  not  guarantee  that  the  result  of  surgery  would  invariably be beneficial, much less to the extent of  100%  for  the  person  operated  on.  The  only  assurance  which  such  a  professional  can  give  or  can be understood to have given by implication is  that  he  is  possessed of  the  requisite  skill  in  that  branch  of  profession  which  he  is  practising  and  

34

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, a 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 necessary for every professional  to  possess  the  highest  level  of  expertise  in  that  branch which he practices. In  Michael Hyde and  Associates v. J.D. Williams & Co. Ltd.  ,  [2001]  P.N.L.R.  233,  CA,  Sedley  L.J.  said  that  where  a  profession embraces a range of views as to what is  an acceptable standard of conduct, the competence  of  the  defendant  is  to  be  judged  by  the  lowest  standard  that  would  be  regarded  as  acceptable.  (Charles worth & Percy, ibid, Para 8.03)”

70. In Jacob Mathew’s case, this court heavily relied on the  

case of  Bolam (supra).  The court referred to the opinion of  

McNair, J. defining negligence as under:-

"19.Where  you get  a  situation  which involves  the  use of  some special  skill  or competence, then the  test as to whether there has been negligence or not  is not the test of the man on the top of a Clapham  omnibus, because he has not got this special skill.  The test is the standard of the ordinary skilled man  exercising and professing to have that special skill .  . . A man need not possess the highest expert skill;  it  is well  established law that it  is sufficient if  he  

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exercises  the  ordinary  skill  of  an  ordinary  competent man exercising that particular art."

71. In  Eckersley v.  Binnie, Bingham, L.J. summarized the  

Bolam test in the following words :-

"From  these  general  statements  it  follows  that  a  professional  man  should  command  the  corpus  of  knowledge  which  forms  part  of  the  professional  equipment of the ordinary member of his profession.  He should not lag behind other ordinary assiduous  and  intelligent  members  of  his  profession  in  knowledge  of  new  advances,  discoveries  and  developments in his field. He should have such an  awareness as an ordinarily  competent practitioner  would have of the deficiencies in his knowledge and  the limitations on his skill. He should be alert to the  hazards  and  risks  in  any  professional  task  he  undertakes  to  the  extent  that  other  ordinarily  competent  members  of  the  profession  would  be  alert.  He  must  bring  to  any  professional  task  he  undertakes  no  less  expertise,  skill  and care  than  other  ordinarily  competent  members  of  his  profession  would  bring,  but  need  bring  no  more.  The standard is that of the reasonable average. The  law does not require of a professional man that he  be a paragon combining the qualities of polymath  and  prophet."  (Charles  worth  &  Percy,  ibid,  Para  8.04)

72. The  degree  of  skill  and  care  required  by  a  medical  

practitioner is so stated in Halsbury's Laws of England (Fourth  

Edition, Vol.30, Para 35):-

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"The  practitioner  must  bring  to  his  task  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,  and a person is  not  liable  in  negligence  because someone else of greater skill and knowledge  would  have  prescribed  different  treatment  or  operated  in  a  different  way;  nor  is  he  guilty  of  negligence  if  he  has  acted  in  accordance  with  a  practice accepted as proper by a responsible body of  medical  men  skilled  in  that  particular  art,  even  though  a  body  of  adverse  opinion  also  existed  among medical men.

Deviation  from normal  practice  is  not  necessarily  evidence of negligence. To establish liability on that  basis it must be shown (1) that there is a usual and  normal  practice;  (2)  that  the  defendant  has  not  adopted it; and (3) that the course in fact adopted is  one  no  professional  man  of  ordinary  skill  would  have taken had he been acting with ordinary care."

73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord  

Denning speaking for the court observed as under:-

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

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74. In  another  leading  case  Maynard v.  West  Midlands  

Regional  Health  Authority  the  words  of  Lord  President  

(Clyde)  in  Hunter v.  Hanley 1955 SLT 213 were referred to  

and quoted as under:-

“In the realm of  diagnosis  and treatment  there is  ample scope for genuine difference of opinion and  one man clearly is not negligent merely because his  conclusion  differs  from  that  of  other  professional  men...The  true  test  for  establishing  negligence  in  diagnosis  or  treatment  on the part  of  a  doctor  is  whether  he  has been proved to  be  guilty  of  such  failure as no doctor of ordinary skill would be guilty  of if acting with ordinary care...".

The court per Lord Scarman added as under:-

"A doctor who professes to exercise a special  skill  must  exercise  the  ordinary  skill  of  his  specialty.  Differences of  opinion and practice exist,  and will  always exist, in the medical as in other professions.  There  is  seldom  any  one  answer  exclusive  of  all  others  to  problems  of  professional  judgment.  A  court may prefer one body of opinion to the other,  but that is no basis for a conclusion of negligence."

75. The  ratio  of  Bolam’s  case  is  that  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 fact that the respondent charged with negligence acted in  

accordance with the general and approved practice is enough  

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to  clear  him of  the  charge.  Two 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 on which it is suggested as should have been used.

76. A mere deviation from normal professional practice is not  

necessarily evidence of negligence.

77. In Jacob Mathew’s case (supra) this court observed that  

higher  the  acuteness  in  emergency  and  higher  the  

complication, more are the chances of error of judgment. The  

court further observed as under:-

“25……At times, the professional is confronted with  making a choice between the devil and the deep sea  and he has to choose the lesser evil.  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.  Which  course  is  more  appropriate  to  follow,  would  depend  on  the  facts  and  circumstances of a given case.  The usual practice  

39

prevalent nowadays is to obtain the consent of the  patient or of the person in-charge of the patient if  the patient is not be in a position to give consent  before adopting a given procedure. So long as it can  be  found  that  the  procedure  which  was  in  fact  adopted was one which was acceptable to medical  science  as  on  that  date,  the  medical  practitioner  cannot be held negligent merely because he chose to  follow one procedure and not another and the result  was a failure.”

78. A doctor 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.  This  court  in  

Jacob Mathew’s case very aptly observed that 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.

79. Doctors in complicated cases have to take chance even if  

the rate of survival is low.

80. The  professional  should  be  held  liable  for  his  act  or  

omission, if negligent, is to make life safer and to eliminate the  

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possibility of recurrence of negligence in future.  But, at the  

same time courts have to be extremely careful to ensure that  

unnecessarily professionals are not harassed and they will not  

be able to carry out their professional duties without fear.  

81. 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  

for  it.   A  professional  deserves  total  protection.  The  Indian  

Penal Code has taken care to ensure that people who act in  

good faith should not be punished.    Sections 88, 92 and 370  

of  the  Indian  Penal  Code  give  adequate  protection  to  the  

professional and particularly medical professionals.

82. The Privy Council in John Oni Akerele v. The King AIR  

1943 PC 72 dealt with a case where a doctor was accused of  

manslaughter,  reckless  and  negligent  act  and  he  was  

convicted. His conviction was set aside by the House of Lords  

and it was held thus:-

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(i) That a doctor is not criminally responsible for a  patient's  death  unless  his  negligence  or  incompetence  went  beyond  a  mere  matter  of  compensation  between subjects  and showed such  disregard for life and safety of others as to amount  to a crime against the State.;

(ii) That the degree of negligence required is that it  should be gross, and that neither a jury nor a court  can  transform  negligence  of  a  lesser  degree  into  gross  negligence  merely  by  giving  it  that  appellation.... There is a difference in kind between  the negligence which gives a right to compensation  and the negligence which is a crime.

(iii)  It  is  impossible  to define culpable  or criminal  negligence,  and  it  is  not  possible  to  make  the  distinction  between  actionable  negligence  and  criminal negligence intelligible, except by means of  illustrations  drawn  from  actual  judicial  opinion....The most favourable view of the conduct  of an accused medical man has to be taken,  for it  would be most fatal to the efficiency of the medical  profession  if  no  one  could  administer  medicine  without a halter round his neck."

(emphasis supplied)

83. In the said case, their Lordships refused to accept the  

view that  criminal  negligence  was proved merely  because  a  

number  of  persons were  made  gravely  ill  after  receiving  an  

injection of Sobita from the appellant coupled with a finding  

that a high degree of care was not exercised. Their Lordships  

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also refused to agree with the thought that merely because too  

strong a mixture was dispensed once and a number of persons  

were  made  gravely  ill,  a  criminal  degree  of  negligence  was  

proved.

84. This  court  in  Kurban  Hussein  Mohammedali  

Rangawalla v.  State of Maharashtra   (1965) 2 SCR 622,  

while dealing with Section 304A of IPC, the following statement  

of  law  by  Sir  Lawrence  Jenkins  in  Emperor v.  Omkar  

Rampratap (1902) 4 Bom LR 679, was cited with approval:-

"To  impose  criminal  liability  under  Section  304A,  Indian Penal  Code,  it  is  necessary that  the death  should have  been the  direct  result  of  a  rash and  negligent act of the accused, and that act must be  the  proximate  and  efficient  cause  without  the  intervention of another's negligence. It must be the  causa causans; it is not enough that it may have  been the causa sine qua non."

85. In  Dr.  Laxman  Balkrishna  Joshi (supra),  the  court  

observed  that  the  practitioner  must  bring  to  his  task  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  

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requires.  The  doctor  no doubt  has a  discretion in choosing  

treatment which he proposes to give to the patient and such  

discretion is relatively ampler in cases of emergency. In this  

case, the death of patient was caused due to shock resulting  

from reduction of  the  fracture  attempted  by  doctor  without  

taking  the  elementary  caution  of  giving  anaesthetic  to  the  

patient. The doctor was held guilty of negligence and liability  

for  damages  in  civil  law.  We  hasten  to  add  that  criminal  

negligence  or  liability  under  criminal  law was  not  an issue  

before  the  Court  -  as  it  did  not  arise  and  hence  was  not  

considered.

86. In  a  significant  judgment  in  Indian  Medical  

Association v. V.P. Shantha & Others (1995) 6 SCC 651, a  

three-Judge Bench of this Court held that service rendered to  

a patient by a medical practitioner (except where the doctor  

renders  service  free  of  charge  to  every  patient  or  under  a  

contract of personal service), by way of consultation, diagnosis  

and treatment, both medicinal and surgical, would fall within  

the  ambit  of  ‘service’  as  defined  in  Section  2(1)(o)  of  the  

Consumer Protection Act, 1986.  Deficiency in service has to  

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be judged by applying the test  of  reasonable skill  and care  

which is applicable in action for damages for negligence.

87. In the said case, the court also observed as under:-

"22.  In  the  matter  of  professional  liability  professions differ  from occupations for  the  reason  that professions operate in spheres where success  cannot  be  achieved  in  every  case  and  very  often  success or failure depends upon factors beyond the  professional  man's  control.  In  devising  a  rational  approach  to  professional  liability  which  must  provide  proper  protection  to  the  consumer  while  allowing  for  the  factors  mentioned  above,  the  approach  of  the  Courts  is  to  require  that  professional  men  should  possess  a  certain  minimum  degree  of  competence  and  that  they  should exercise reasonable care in the discharge of  their duties. In general, a professional man owes to  his client  a duty in tort as well  as in contract to  exercise  reasonable  care  in  giving  advice  or  performing services.  (see:  Jackson and Powell  on  Professional  Negligence,  3rd Edn.  paras  1-04,1-05  and 1-56).

88. In  Achutrao Haribhau Khodwa & Others  v. State of  

Maharashtra & Others (1996) 2 SCC 634, this Court noticed  

that  in  the  very  nature  of  medical  profession,  skills  differs  

from doctor to doctor and more than one alternative course of  

treatment are available, all admissible. Negligence cannot be  

attributed to a doctor so long as he is performing his duties to  

the best of his ability and with due care and caution. Merely  

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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.

89. In Spring Meadows Hospital  & Another  (supra),  the  

court  observed that an error of  judgment is  not necessarily  

negligence.   In  Whitehouse  (supra) the  court  observed  as  

under:-

"The true position is that an error of judgment may,  or may not, be negligent, it depends on the nature  of the error. If it is one that would not have been  made by a reasonably competent professional man  professing  to  have  the  standard and type  of  skill  that the defendant holds himself out as having, and  acting with ordinary care, then it is negligence. If,  on the other hand, it is an error that such a man,  acting with ordinary care, might have made, then it  is not negligence."

90. In  Jacob Mathew’s case (supra),  conclusions summed  

up by the court were very apt and some portions of which are  

reproduced hereunder:-

(1) Negligence is the breach of a duty caused by  

omission to do something which a reasonable  

man  guided  by  those  considerations  which  

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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  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  

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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.  

(3) 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.

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91. To prosecute a medical professional for negligence under  

criminal law it must be shown 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.

92. In a relatively recent case in  C.P. Sreekumar (Dr.), MS  

(Ortho) v. S. Ramanujam (2009) 7 SCC 130 this court had an  

occasion to deal with the case of medical negligence in a case  

in which the respondent was hit by a motor-cycle while going  

on his by-cycle sustained a hairline fracture of the neck of the  

right femur.

93. Pre-operative evaluation was made and the appellant Dr.  

Sreekumar,  on  considering  the  various  options  available,  

decided to perform a hemiarthroplasty instead of going in for  

the internal fixation procedure.  The respondent consented for  

the  choice  of  surgery  after  the  various  options  have  been  

explained to him.  The surgery was performed the next day.  

The  respondent  filed  a  complaint  against  the  appellant  for  

49

medical negligence for not opting internal fixation procedure.  

This  court  held  that  the  appellant’s  decision  for  choosing  

hemiarthroplasty with respect to a patient of 42 years of age  

was not so palpably erroneous or unacceptable as to dub it as  

a case of professional negligence.

94. On scrutiny of  the leading cases of  medical  negligence  

both  in  our  country  and  other  countries  specially  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  

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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.  

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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  

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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 practitioners 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  

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  

53

patients  have  to  be  paramount  for  the  medical  

professionals.

95. In  our  considered  view,  the  aforementioned  principles  

must  be  kept  in  view  while  deciding  the  cases  of  medical  

negligence.  We should not be understood to have held that  

doctors can never be prosecuted for medical negligence.  As  

long as the doctors have performed their duties and exercised  

an ordinary degree of professional skill and competence, they  

cannot be held guilty of medical negligence. It  is imperative  

that  the doctors  must be able  to perform their  professional  

duties with free mind.   

96. When we apply well settled principles enumerated in the  

preceding  paragraphs  in  dealing  with  cases  of  medical  

negligence,  the  conclusion  becomes  irresistible  that  the  

appellants  have  failed  to  make  out  any  case  of  medical  

negligence against the respondents.   

97. The National Commission was justified in dismissing the  

complaint of the appellants.  No interference is called for.  The  

appeal being devoid of any merit is dismissed.  In view of the  

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peculiar facts and circumstances of this case the parties are  

directed to bear their own costs.

…….……………………..J.      (Dalveer Bhandari)

…….……………………..J.      (Harjit Singh Bedi)

New Delhi; February 10, 2010

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