A medical professional's liability for negligence arises only from lack of skills or competence and not from simple errors or unintentional mistakes.

ORDER :

1. Mr. Dash, learned advocate appears on behalf of petitioner, who is a doctor. On 24^th June, 2022, he had moved the petition to submit, his client performed operation on private opposite party, who thereafter complained of medical negligence and the Permanent Lok Adalat (PLA), by impugned award dated 9^th November, 2021, found in her favour. By order made that day Court had posed queries to Mr. Mohanty, learned advocate appearing on behalf of said private opposite party. Paragraph 3 in said order, containing the queries, is reproduced below.

“3. Court requires satisfaction that medical negligence is covered by entry (v) under clause (b) of section 22A in Legal Services Authorities Act, 1987. Furthermore, cursory glance at impugned award does not reflect evidence was laid before the PLA that corrective procedure was performed, for finding of mistake amounting to medical negligence.”

2. Mr. Dash relies on following judgments of the Supreme Court.

(i) Dr. Harish Kumar Khurana v. Joginder Singh , reported in (2021) 10 SCC 291 , paragraphs 25 and 27. Paragraph 25 is reproduced below.

“The extracted portion would indicate that the opinion as expressed by NCDRC is not on analysis or based on medical opinion but their perception of the situation to arrive at a conclusion. Having expressed their personal opinion, they have in that context referred to the principles declared regarding Bolam test and have arrived at the conclusion that the second surgery should not have been taken up in such a hurry and in that context that the appellants have failed to clear the Bolam test and therefore, they are negligent in performing of their duties. The conclusion reached to that effect is purely on applying the legal principles, without having any contra medical evidence on record despite NCDRC itself observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients and are not ordinary but experienced doctors.”

(ii) Judgment dated 20^th April, 2022 in Civil Appeal no.6507 of 2009 (Dr. (Mrs.) Chanda Rani Akhouri v. Dr. M.A. Methusethupathi), paragraphs 23, 26 and 27 (Live Law print). A passage from paragraph 23 is reproduced below.

“23. In the case of medical negligence, this Court in Jacob Mathew v. State of Punjab and Another, (2005) 6 SCC 1 dealt with the law of medical negligence in respect of professionals professing some special skills. Thus, any individual approaching such a skilled person would have a reasonable expectation under the duty of care and caution but there could be no assurance of the result. No doctor would assure a full recovery in every case. At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if (a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or (b) he did not exercise with reasonable competence in given case the skill which he did possess. It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional. xx xx xx”

3. Relying on above authorities Mr. Dash submits, the PLA did not have any tangible medical evidence to find negligence against