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2009(1) CPR 231 (SC)
SUPREME COURT OF INDIA
Markandey Katju and R.M. Lodha, JJ.
Martin F. D’Souza — Appellant
versus
Mohd. Ishfaq — Respondent
Civil Appeal No. 3541 of 2002
Decided on : 17-02-2009
(2005) 6 SCC 1 – Relied upon.
(ii) Medical Negligence – General principles or BOLAM Rule discussed. (Paras 38 to 46)
(1957) 1 WLR 582; (1988) 18 Con LR 1 – Relied upon.
(iii) Medical Negligence – Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightway liable for medical negligence by applying the doctrine of res ipsa loquitur – No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient. (Para 47)
(2005) 6 SCC 1 – Relied upon.
(iv) Medical Negligence – For civil liability it may be enough for the complainant to prove that the doctor did not exercise reasonable care – For convicting a doctor in a criminal case, on the other hand, it must also be proved that this negligence was gross amounting to recklessness – The professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. (Paras 50, 53)
(1996) 4 SCC 332; Revision Petition No.586 of 1999 (National Commission) – Relied upon.
(v) Medical Negligence – Protection to doctors and care to be taken by Hospitals etc. recited. (Para 54)
(2005) 6 SCC 1 – Relied upon.
(vi) Medical Negligence and protection to doctors etc. – It is the duty of the doctor in an emergency to begin treatment of the patient and he should not await the arrival of the police or to complete the legal formalities – Doctors and nursing homes/hospitals need not be unduly worried about the performance of their functions – The law is a watchdog, and not a bloodhound, and as long as doctors do their duty with reasonable care they will not be held liable even if their treatment was unsuccessful. (Paras 57 and 73)
(2005) 6 SCC 1; AIR 1989 SC 2039; AIR 1996 SC 2426; (2005) 12 SCC 430; (2000) 4 SCC 110; (2005) 7 SCC 22; (2005) 7 SCC 1; AIR 1969 SC 128; AIR 2004 SC 4091; JT 1989 (2) SC 419 : (1989) 3 SCC 223 – Relied upon.
AIR 1990 AP 207; (1996) CPJ 112; (1998) CPJ 1; (1998) CPJ 3; (1998) CPJ 110; AIR 2000 SC 1888 – Referred as overruled.
(vii) Medical Negligence – Acts judged as being negligent enumerated. (Para 72)
(1995)6 SCC 651 – Relied upon.
(viii) Medical Negligence – It was the non-cooperative attitude of the respondent, and his continuing with the Amikacin injection even after 11.6.1991 against the advice of the appellant which was the cause of his ailment, i.e. the impairment of his hearing – A patient who does not listen to his doctor’s advice often has to face the adverse consequences – In the circumstances, the appellant was not to blame in any way. (Para 92)
(ix) Medical Negligence – The appellant was faced with a situation where not only was there kidney failure of the patient, but also urinary tract infection and blood infection – In this grave situation threatening the life of the patient the appellant had to take drastic steps – Even if he prescribed Amikacin for a longer period than is normally done, he obviously did it to save the life of the respondent – Therefore he was not guilty of medical negligence and rather wanted to save the life of the respondent. (Para 98)
(x) Medical Negligence – The decision in Indian Medical Association vs. V.P. Shantha should not be understood to mean that doctors should be harassed merely because their treatment was unsuccessful or caused some mishap which was not necessarily due to negligence. (Para 115)
(1995)6 SCC 651 – Relied upon.
(xi) Medical Negligence – In order to save doctors from undue harassment, directions given to Consumer Fora. (Para 117)
Facts of the case :
1. In March 1991, the respondent who was suffering from chronic renal failure was referred by the Director, Health Services to the Nanavati Hospital, Mumbai for the purpose of a kidney transplant.
2. On or about 24.4.1991, the respondent reached Nanavati Hospital, Bombay and was under the treatment of the appellant Doctor. At that stage, the respondent was undergoing haemodialysis twice a week on account of chronic renal failure. Investigations were underway to find a suitable donor. The respondent wanted to be operated by Dr. Sonawala alone who was out of India from 1.6.1991 to 1.7.1991.
3. On 30.7.1991, the respondent was operated upon for transplant after he had ceased to be under the treatment of the appellant.
4. On 7.7.1992, the respondent filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi claiming compensation of an amount of Rs.12,00,000/- as his hearing had been affected.
5. The National Consumer Disputes Redressal Commission passed an order on 6.10.1993 directing nomination of an expert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to examine the complaint and give an opinion. This was done in order to get an unbiased and neutral opinion.
7. AIIMS nominated Dr. P. Ghosh, and his report was submitted before the Commission, after examining the respondent. Dr. Ghosh was of the opinion that the drug Amikacin was administered by the appellant as a life saving measure and was rightly used. It is submitted by the appellant that the said report further makes it clear that there has been no negligence on the part of the appellant.
8. However, the Commission allowed the complaint of the respondent by way of the impugned order dated 9.4.2002 and awarded Rs.4 lakh with interest @ 12% from 1.8.1992 as well as Rs.3 lakh as compensation as well as Rs.5000/- as costs.
Finding of the Court :
The appellant was not guilty of medical negligence.
Result : Appeal allowed.
Markandey Katju, J. —This appeal against the judgment of the National Consumer Disputes Redressal Commission, New Delhi dated 22.3.2002 has been filed under Section 23 of the Consumer Protection Act, 1986.
2. Heard learned counsel for the parties and perused the record.
3. The brief facts of the case are narrated below :
4. In March 1991, the respondent who was suffering from chronic renal failure was referred by the Director, Health Services to the Nanavati Hospital, Mumbai for the purpose of a kidney transplant.
5. On or about 24.4.1991, the respondent reached Nanavati Hospital, Bombay and was under the treatment of the appellant Doctor. At that stage, the respondent was undergoing haemodialysis twice a week on account of chronic renal failure. Investigations were underway to find a suitable donor. The respondent wanted to be operated by Dr. Sonawala alone who was out of India from 1.6.1991 to 1.7.1991.
6. On 20.5.1991, the respondent approached the appellant Doctor. At the time, the respondent, who was suffering from high fever, did not want to be admitted to the Hospital despite the advice of the appellant. Hence, a broad spectrum antibiotic was prescribed to him.
7. From 20.5.1991 to 29.5.1991, the respondent attended the Haemodialysis Unit at Nanavati Hospital on three occasions. At that time, his fever remained between 1010-1040F. The appellant constantly requested the complainant to get admitted to hospital but the respondent refused.
8. On 29.5.1991 the respondent who had high fever of 1040F finally agreed to get admitted to hospital due to his serious condition.
9. On 30.5.1991 the respondent was investigated for renal package. The medical report showed high creatinine 13 mg., blood urea 180 mg. The Haemoglobin of the respondent was 4.3%. The following chart indicates the results of the study in comparison to the normal range :-
Normal Range
S. Creatinine 13.0 mgs. % 0.7 - 1.5 mgs. %
Blood Urea 180 mgs. % 10-50 mgs. %
Haemoglobin 4.3 gms. % 11.5-13.5 gms. %
10. On 30.5.1991, the respondent was investigated for typhoid fever, which was negative. He was also investigated for ESR, which was expectedly high in view of renal failure and anemia infection. Urine analysis was also carried out which showed the presence of bacteria.
11. On 3.6.1991, the reports of the urine culture and sensitivity were received. The report showed severe urinary tract infection due to Klebsiella species (1 lac/ml.). The report also showed that the infection could be treated by Amikacin and Methenamine Mandelate and that the infection was resistant to other antibiotics. Methnamine Mandelate cannot be used in patients suffering from renal failure.
12. On 4.6.1991, the blood culture report of the respondent was received, which showed a serious infection of the blood stream (staphylococcus species).
13. On 5.6.1991, Amikacin injection was administered to the respondent for three days (from 5th to 7th June, 1991), since the urinary infection of the respondent was sensitive to Amikacin. Cap. Augmentin (375 mg.) was administered three times a day for the blood infection and the respondent was transfused one unit of blood during dialysis. Consequent upon the treatment, the temperature of the respondent rapidly subsided.
14. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney transplant even though the respondent had advised him that in view of his blood and urine infection no transplant could take place for six weeks.
15. On 8.6.1991, the respondent, despite the appellant’s advice, got himself discharged from Nanavati Hospital. Since the respondent was suffering from blood and urinary infection and had refused to come for haemodialysis on alternate days, the appellant suggested Injection Amikacin (500 mg.) twice a day. Certain other drugs were also specified to be taken under the supervision of the appellant when he visited the Dialysis Unit.
16. On 11.6.1991, the respondent a
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