Case: DR. S.K.JHUNJHUNWALA Vs. MRS. DHANWANTI KUMAR

2. In order to appreciate the issue involved in the appeal, it is necessary to set out the relevant facts hereinbelow.The appellant was the opposite party No.1 whereas the respondent No.1 herein was the complainant and respondent No.2 herein was the opposite party No.2 in the complaint out of which this appeal arises.The appellant is a doctor by profession and is practicing in Calcutta since 1969. He is a qualified Surgeon having expertise, especially in gall bladder surgery. He obtained his MBBS degree from Banaras Hindu University in 1968 and thereafter went to England and obtained FRCS degree in 1976. He then worked for seven years in various hospitals in England as a Surgeon and returned to India in 1978 and settled in Calcutta. He was a visiting consultant to several Hospitals out of which oneLine Diagnostic Center and Nursing Home (respondent No.2 herein) at Calcutta where he used to perform operations on his patients.lady, who, at the relevant time, was residing in Calcutta felt pain in her abdomen in June 1996. She, therefore, consulted a local doctor but she did not get any relief. Therefore, she consulted Dr. Lakshmi Basu who, on examination, advised her to get some medical tests done such asPA Chest, Ultrasound of upper abdomen Endoscopy, Blood Tests etc. Respondent No.1, as advised, carried out these medical tests. On examination of the reports of respondent No.1, Dr. Basu opined that her GallBladder had two calculi in its lumen and the same could be cured only by operation. Dr. Basu accordingly advised respondent No.1 to undergo laparoscopic surgery from any good Surgeon and suggested the name of the appellant.Respondent No.1, as advised, consulted Dr. S.K.appellant herein who, after her examination and also her medical test reports, agreed with the advise of Dr. Basu and accordingly advised respondent No.1 for undergoing Surgery of her Gall Bladder. The appellant also advised respondent No.1 to get herself admitted in respondentHospital for undergoing Surgery.On 07.08.1996, respondent No.1 got herself admitted in respondentHospital as an indoor patient. On 08.08.1996 the appellant performed the laparoscopy and after that open surgery and removed the Gall Bladder of respondent No.1.Respondent No.1 was in the hospital for about a week or ten days forcare and thereafter she was discharged.In December 1997, respondent No.1 filed a complaint under Section 10 of the Consumer Protection Act, 1986 (for short,) against the appellant (opposite party No.1) and respondent No.2 (opposite party No.2) claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.Respondent No.1, in substance, complained that firstly, she had never given her consent for performing general Surgery of her Gall Bladder rather she had given consent for performing laparoscopy Surgery only but the appellant performed general surgery of her Gall Bladder which resulted in putting several stitches and scars on her body,Secondly, even the surgery performed was not successful inasmuch as respondent No.1 thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc.,Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in CBD. It was alleged that all these ailments were incurred due to the negligence of the appellant, who did not perform the surgery properly and rather performed the surgery carelessly leaving behind for respondent No.1 only mental agony, pain, harassment and money loss and hence she filed a complaint to claim the reasonable amount of compensation under various heads as mentioned above.The appellant filed his reply and denied the allegations made by respondent No.1 in her complaint. In substance, the appellant stated in his reply that he, after examining respondent No.1, advised her to go for surgery of Gall Bladder, which may even include removal of Gall Bladder. It was stated that consent of respondent No.1 for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery. The appellant stated that after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to respondent No.1s husband and told him that in such a situation it would not be possible to perform laparoscopic surgery and only conventional procedure of surgery is the option to remove the malady.The husband of respondentNo.1 agreed for the option suggested by the appellant and the appellant accordingly performed conventional surgery. Respondent No.1 was discharged after spending few days in the Hospital forcare. The appellant, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on respondent No.1 and stated that all kinds of precautions to the best of his ability and capacity, which were necessary to perform the surgery were taken by him and by the team of doctors that worked with him in all such operational cases.Parties adduced affidavit evidence in support of their respective cases set up in their pleadings. The State Commission, by order dated 19.01.2004, dismissed the complaint filed by respondent No.1 finding no merit therein. Respondent No.1 feltaggrieved and filed appeal before the National Commission.By impugned order, the National Commission allowed the appeal filed by respondent No.1 in part and awarded a total compensation of Rs.2 lakhs to be paid by the appellant to respondent No.1 on account of negligence on his part in performing the surgery which gives rise to filing of the present appeal by way of special leave in this Court by theS.K. Jhunjhnwala(opposite party No.1).

Reasoning:
24. In our view, the facts of the case at hand has to be examined in the light of the aforesaid principle of law with a view to find out as to whether thedoctor by profession and who treated respondent No.1 and performed surgery on her could be held negligent in performing the general surgery of her Gall Bladder on 08.08.1996.These undisputed facts, in our opinion, clearly prove that the appellant is a qualified senior doctor with an experience in the field and had also possessed the requisite knowledge and skill in the subject to perform the surgery of Gall Bladder.The State Commission did not accept the aforementioned submission of respondent No.1 but this submission found favour to the National Commission for holding the appellant guilty of negligence in performance of his duty in performing the surgery. We do not agree with the reasoning of the National Commission on this issue for more than one reason mentioned below.In other words, we are of the view that there was no need to have another Consent Form to do the conventional surgery in the light of authorization contained in clause 4 itself because the substitute operation was of a same organ for which the former one was advised except with a difference of another well known method known in medical subject to get rid of the malady.Third, there is an evidence on record and we are inclined to accept the evidence that the appellant having noticed while performing laparoscopy that there was some inflammation, adhesion and swelling on Gall Bladder, he came out of operation theater and informed respondent No.1s husband who was sitting outside the operation theater about what the condition of respondent No.1s gall bladder and sought his consent to perform the substitute operation. It is only after the consent given by the husband of respondent No.1, the appellant proceeded to do conventional surgery.In our opinion, there is no reason to disbelieve this fact stated by the appellant in his evidence. It is, in our opinion, a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation.It is not the case of respondent No.1 that her husband was neither present in the hospital on that day nor he was not sitting outside the Operation Theater and nor he ever met the appellant on that day.In our opinion, a clear case of grant of consent to the appellant to perform the substituted operation of Gall Bladder of respondent No.1 was, therefore, made out to enable the appellant to perform the conventional surgery, which he actually performed.In our opinion, the case of the appellant also falls in the excepted category mentioned by this Court because the appellant having noticed the abnormalities in the Gall Bladder while performing laparoscopy surgery proceeded to perform the conventional surgery and that too after obtaining fresh consent of respondenthusband. In other words, it was not an unauthorized act of the appellant and he could legally perform on the basis of original consent (clause 4) of respondent No.1 as also on the basis of the further consent given by the respondent. That apart, we also find that respondent No.1 never raised the objection ofto the appellant or/and opposite party respondent No.2Hospital and it was for the first time in the complaint, she raised this issue and made a foundation to claim compensation from the appellant. Nothing prevented her or her husband to raise the issue of consent immediately after performance the surgery while she was in hospital as an indoor patient and even after discharge that being the natural conduct of any patient. It was, however, not done.In our opinion, no medical evidence of any expert was adduced by respondent No.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventionalsurgery) of Gall Bladder except raising the issue ofThis issue we have already dealt with above and found no merit therein. In our view, respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments.In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.It is apt to remember the words of the then Chief Justice of India when he said in Jacobcase (supra) which reads assubject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution.For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which thecontribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life.The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body andmedical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires anunderstanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission.