2009 Supreme(SC) 544

2009(4) Supreme 319
SUPREME COURT OF INDIA
Lokeshwar Singh Panta and B. Sudershan Reddy, JJ.
Ms. Ins. Malhotra — Appellant
versus
Dr. A. Kriplani & Ors. — Respondents
Civil Appeal No. 1386 of 2001
Decided on : 24-03-2009

IMPORTANT POINT
Indiscriminate prosecution of medical professionals for criminal medical negligence is counter-productive and does no service or good to the society.

Headnote:(a) Indian Penal Code, 1860 – Section 304-A – A professional assures his clients 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 professional may be held liable for negligence if he was not possessed of the requisite skill which he professed to have possessed, or, if he did not exercise, with reasonable competence the skill which he did possess – Standard to be applied for judging negligence of a professional would be that of an ordinary competent person exercising ordinary skill in that profession. (Para 18)

        (2005) 6 SSC 1 – Relied upon.

        Civil Appeal No. 3541 of 2002 – Referred.

        (b) Indian Penal Code, 1860 – Section 304-A – Medical, negligence – 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. (Para 18)

        (1957) 2 AII ER 118 – Relied upon.

        Bolam’s case, (1957) 2 AII ER 118 – Relied upon.

        (c) Medical negligence – Indiscriminate prosecution of medical professionals for criminal medical negligence is counter-productive and does no service or good to the society. (Para 18)

        (2005) 6 SSC 1; (2005) 7 SCC 1 – Relied upon.

       Facts of the case :

        1. The complainant-appellant herein is the sister of Priya Malhotra who died on 24.08.1989 in Bombay Hospital-respondent no. 7 herein.

        2. In May, 1989 Priya Malhotra complained of burning sensation in stomach, vomiting and diarrhea. On 14.07.1989, Priya Malhotra was admitted to the Bombay Hospital. 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.

        3. 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.

        4. 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.

        5. On 08.08.1989, Dr. Vasant S. Sheth and Dr. [Mrs.] S. R. Jahagirdar examined Priya Malhotra and advised laparoscopy. Liver profile showed ‘Australia Antigen’ positive and renal profile showed low serum sodium and serum potassium. On 9.08.1989, Dr. Pratima Prasad performed Laparoscopy when Dr. A. Kriplani, Dr. Vasant S. Sheth and Dr. S. Gupta were also present in the O.T.

        6. 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.

        7. On 12.08.1989, Priya Malhotra was shifted to 3rd floor of the hospital. According to the appellant, Priya 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.

        8. On 22.08.1989, Priya Malhotra became deep unconscious and she passed no urine and her face was swollen. On 24.08.1989 at about 9:15 a.m., Priya Malhotra expired. The post-mortem report revealed the cause of death was due to Peritonitis with renal failure.

        9. 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.

        10. On 02.07.1992, written complaint was sent by post to the National Consumer Disputes Redressal Commission against Dr. A. Kriplani, Dr. [Mrs.] Pratima Prasad, Dr. S. Gupte, Dr. Singhania, Dr. [Mrs.] S. R. Jahagirdar and Dr. Sachdeva.

        11. 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.

        12. 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.

        13. 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.

       Finding of the Court :

        No case is made out by the appellant against the respondents.

       Result : Appeal dismissed.