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2010 (1) Supreme 519
SUPREME COURT OF INDIA
Dalveer Bhandari and Harjit Singh Bedi, JJ.
Kusum Sharma & Others — Appellants
versus
Batra Hospital & Medical Research Centre & Others — Respondents
Civil Appeal No.1385 of 2001
Decided on : 10-02-2010
Negligence and Criminal Negligence –Distinction between-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 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 particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of accused person to have adopted (Para 68)
Medical Negligence - Ratio of Bolam’s case -The ratio of Bolam’s case is that it is enough for 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 to clear him of the charge- Two things are pertinent to be noted-Firstly, the standard of care, when assessing 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 (Para 75)
Consumer Protection Act, 1986- Section 2(1)(o) -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 Act, 1986- Deficiency in service has to be judged by applying the test of reasonable skill and care which is applicable in action for damages for negligence (Para 86)
(1995) 6 SCC 651, relied
Medical negligence – Principles for determination of -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- A medical practitioner would be liable only where his conduct fell below that of standards of a reasonably competent practitioner in his field- 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- 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- 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 patients have to be paramount for the medical professionals (Para 94)
Facts of the Case :
Deceased herein in the instant case was admitted in Batra Hospital for Anarsarca (Swelling).On ultrasound of abdomen and C.T. scan of abdomen it was found that there was a smooth surface mass in the left adrenal measuring 4.5 x 5 cm and that right adrenal was normal. Deceased was advised surgical operation for the removal of abdominal tumor. Surgery was carried out by respondent no.3.Deceased was discharged on 23.6.1990 carrying two bags on his body. On 9.10.1990, deceasedvomited at home and arrangements for shifting him to the Batra Hospital were made and he died in the hospital on 11.10.1990 on account of ‘pyogenic meningitis’. Appellants attributed death of deceased because of negligence of doctors and hospital. A Complaint was filed by appellants claiming compensation of Rs.45 lakhs attributing deficiency in services and medical negligence in the treatment of deceased .Said complaint was Dismissed by National Commission.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
In the instant case, respondent no.3 who performed the operation had reasonable degree of skill and knowledge. According to the findings of the National Commission, he could not be held guilty of negligence by any stretch of imagination. 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. Appellants failed to make out any case of medical negligence against the respondents. National Commission was justified in dismissing complaint of the appellants. No interference was called for with said order.Appeal being devoid of any merit was dismissed.
Result : Appeal dismissed.
Key Points: - Negligence basis: deviation from normal professional practice is not necessarily evidence of negligence; standard is ordinary skilled practice at the time of incident (!) (!) (!) - Bolam standard: liability hinges on whether the doctor acted in accordance with a practice accepted by a responsible body of medical professionals; knowledge/time of incident matters (!) (!) (!) - Scope of professional protection: professionals are protected if they exercise reasonable skill and care; difference of opinion among professionals does not automatically prove negligence (!) (!) (!) - Diagnosis and treatment: there is room for legitimate professional difference; negligence requires failure to meet standard of an ordinarily competent practitioner in the field (!) (!) - Civil vs criminal liability: criminal negligence requires gross negligence with recklessness; standard of proof and degree of negligence differ from civil negligence (!) (!) (!) - burden of proof and due process: error of judgment is not necessarily negligence; the decision must be judged against the standard of an ordinary skilled professional acting with ordinary care (!) (!) - Protection of medical professionals: emphasis on protecting professionals to perform duties without fear, while ensuring patient welfare (!) (!) (!) - Informed consent and documentation: disputes arise from alleged lack of informed consent and recording of diagnoses; evidence must support claims of negligence (!) (!) (!) - Evolution of standards: standard of care judged by knowledge available at the time of incident, not at trial; availability of equipment may affect negligence assessment (!)
JUDGMENT
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 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 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 where he was admitted on 22.7.1990 and treatment was given for pancreatic fistula
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