DR. S. K. JHUNJHUNWALA versus MRS. DHANWANTI KAUR & ANR.
[2018] 12 S.C.R. 868, Supreme Court of India, 2018
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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DR. S. K. JHUNJHUNWALA
v.
MRS. DHANWANTI KAUR & ANR.
(Civil Appeal No. 3971 of 2011)
OCTOBER 01, 2018
[ABHAY MANOHAR SAPRE AND VINEET SARAN, JJ.]
Consumer Protection Act, 1986 – Medical Negligence – When
not – Appellant performed laparoscopy and thereafter general
surgery to remove the Gall Bladder of Respondent No.1 –
Respondent No.1 filed complaint alleging negligence by the
appellant in performing the surgery and claimed compensation for
the mental suffering and pain suffered by her throughout after the
surgery as a result of various ailments suffered by her post surgery
– Respondent No.1 further alleged that she never gave consent for
performing general surgery of her Gall Bladder rather she had
given consent for performing laparoscopy only – Complaint
dismissed by State Commission – National Commission awarded Rs.2
lakhs to be paid by the appellant to Respondent No.1 on account of
negligence on his part – Propriety of – Held: Appellant is a qualified
senior doctor with experience in the field and possessed the requisite
knowledge and skill in the subject to perform the surgery of Gall
Bladder – Initially he proceeded to perform the laparoscopy of the
Gall Bladder but while so performing he noticed some inflammation
and swelling on the Gall Bladder and therefore, decided to perform
the conventional surgery – There is evidence on record that the
appellant sought consent of  Respondent No.1’s husband to perform
the
substitute operation and only thereafter proceeded to do
conventional surgery – Further, in terms of Clause 4 of the Consent
Form, the appellant was entitled to perform the conventional surgery
as a substitute to the former one having noticed some abnormalities
at the time of performing laparoscopy – Thus, there was no need to
have another Consent Form to do the conventional surgery – Present
is a clear case of grant of consent to the appellant to perform the
substituted operation of Gall Bladder of Respondent No.1–
Respondent No.1 failed to prove any specific kind of negligence of
the appellant while performing the operation or/and thereafter –
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Impugned order set aside – Order passed by the State Commission
restored.
Consumer Protection Act, 1986 – Medical Negligence –
Factors to be proved – Discussed.
Allowing the appeal, the Court
HELD: 1.1 The appellant is a professionally trained doctor
and has acquired the post-graduate degree in the subject (FRCS)
from London way back in 1976 and worked there (UK) for seven
years and earned enough experience in the field of surgery. It is
also not in dispute that since 1976/1977, he has been in the field
of surgery in India till the date he performed operation of
respondent No.1 on 08.08.1996. These undisputed facts 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. Initially he proceeded to perform the laparoscopy surgery
of the Gall Bladder of respondent No.1 as advised but while so
performing he noticed some inflammation, adhesion and swelling
on the Gall Bladder and, therefore, decided to perform the
conventional surgery, which he actually did on respondent No.1,
to remove the Gall Bladder. [Paras 25-27] [878-C-E]
1.2  Clause 4 of the Consent Form empowers the performing
doctor to perform such additional operation or procedure
including the administration of a blood transfusion or blood plasma
as they or he may consider substitute necessary or proper in the
event of any emergency or if any
anticipated condition is
discovered during the course of the operation. In terms of clause
4 of the Consent Form, the appellant was entitled to perform the
conventional surgery as a substitute to the former one having
noticed some abnormalities at the time of performing
Laparoscopy. 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. There is an evidence on record
that the appellant having noticed while performing laparoscopy
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that there was some inflammation, adhesion and swelling on Gall
Bladder, he came out of operation theater and informed
respondent No.1’s husband who was sitting outside the operation
theater about the condition of respondent No.1’s 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. There is no
reason to disbelieve this fact stated by the appellant in his
evidence. It is 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. 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. [Paras 30-34, 36] [879-C-G; 880-A-B]
1.3  Respondent No.1 never raised the objection of
“consent issue” to the appellant or/and respondent no.2-Hospital
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 of 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. It is not in dispute that respondent no.1 failed to prove any
specific kind of negligence of the appellant while performing the
operation or/and thereafter. Indeed, even the National
Commission held this issue in favour of the appellant.
[Paras 39, 40] [880-G, H; 881-E]
1.4 Respondent No.1 failed to prove with the aid of any
medical evidence that the stones, which were noticed in the
second surgery performed after 11 months, were the same stones
which the appellant failed to remove from the Gall Bladder.  Had
it been so, the appellant could be held liable for failure on his
part to remove the stones and allowed them to remain in the Gall
Bladder for such a long time. There was no medical evidence
adduced by respondent No.1 to prove this fact. [Paras 41, 42]
[881-D-E, H ; 882-A]
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1.5 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. 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. [Paras 43, 44] [882-B-E]
1.6  Respondent No. 1 was not able to prove that the
ailments which she suffered after she returned home from the
Hospital were as a result of faulty surgery performed by the
appellant. The impugned order is set aside and that of the order
passed by the State Commission is restored. [Paras 45, 50]
[882-E-F; 884-C]
Jacob Mathew v. State of Punjab (2005) 6 SCC 1 :
[2005] 2 Suppl. SCR 307 – relied on.
Samira Kohli v. Dr. Prabha Manchanda & Anr.
(2008) 2 SCC 1 : [2008] 1 SCR 719 – referred to.
Bolam v. Friern Hospital Management Committee
[1957] 1 WLR 582 ;  Eckersley v. Binnie (1988) 18
Con LR 1 ; Hucks v. Cole (1968) 118 New LJ 469 –
referred to.
Case Law Reference
[2005] 2 Suppl. SCR 307       relied on
Para 21
[2008] 1 SCR 719
         referred to
Para 37
DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR
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CIVIL APPELLATE JURISDICTION :  Civil Appeal No.3971
of 2011.
From the Judgment and Order dated 01.09.2009 of the National
Consumer Dispute Redressal Commission at New Delhi in First Appeal
No. 93 of 2004.
Ateev Kumar Mathur,  Gagan Gupta, Advs. for the Appellant.
Sanjay Kumar Ghosh, Mrs. Rupali Samanta Ghosh, Advs. for the
Respondents.
The Judgment of the Court was delivered by
ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
against the final judgment and order dated 01.09.2009 passed by the
National Consumer Disputes Redressal Commission (hereinafter referred
to as “the National Commission”), at New Delhi in First Appeal No. 93
of 2004 whereby the National Commission allowed the appeal filed by
respondent No.1 and set aside the order dated 19.01.2004 of the State
Commission, West Bengal, Kolkata in Complaint Case No.698/O/1997.
2.  In order to appreciate the issue involved in the appeal, it is
necessary to set out the relevant facts hereinbelow.
3. 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.
4. 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
one was-Life Line Diagnostic Center and Nursing Home (respondent
No.2 herein) at Calcutta where he used to perform operations on his
patients.
5. Respondent No.1(complainant)-a lady, who,  at the relevant
time, was residing in Calcutta felt pain in her abdomen in June 1996.
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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 as X-ray, PA 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 Gall Bladder 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.
6. Respondent No.1, as advised, consulted Dr. S.K. Jhunjunwala-
the 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 respondent No.2’s
Hospital for undergoing Surgery.
7. On 07.08.1996, respondent No.1 got herself admitted in
respondent No.2’s Hospital 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 for post-operative care and
thereafter she was discharged.
8. In December 1997, respondent No.1 filed a complaint under
Section 10 of the Consumer Protection
Act, 1986 (for short, “the Act”)
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
08.08.1996. 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
DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR
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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.
9.  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.1’s 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 respondent No.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
for post-operative care. 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.
10. 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 felt aggrieved and filed appeal before
the National Commission.
11. 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
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filing of the present appeal by way of special leave in this Court by the
appellant-Dr. S.K. Jhunjhnwala(opposite party No.1).
12. The short question, which arises for consideration in this case,
is whether the National Commission was justified in allowing respondent
No.1’s appeal and was, therefore, justified in holding the appellant (opposite
party No.1) negligent in performing the Surgery of Gall Bladder of
respondent No.1 and, in consequence thereof, was justified in awarding
Rs.2 lakhs by way of compensation to respondent No.1.
13. Heard Mr. Ateev Kumar Mathur, learned counsel for the
appellant and Mrs. Rupali Samanta Ghosh, learned counsel for respondent
No.1.
14. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal and while
setting aside the impugned order restore the order of the State
Commission for the following reasons.
15. Before we proceed to examine the facts of this case, it is
apposite to take note of legal principle that governs the controversy
involved in the appeal.
16. The question as to how and by which principle, the Court
should decide the issue of negligence of a professional doctor and hold
him liable for his medical acts/advise given by him/her to his patient
which caused him/her some monetary loss, mental and physical
harassment, injury and suffering on account of doctor’s medical advise/
treatment (oral or operation) is no longer res integra and settled
long
back by the series of English decisions as well as the decisions of this
Court.
17. The classic exposition of law on this subject is first laid down
in a decision of Queens Bench in a leading case of Bolam vs. Friern
Hospital Management Committee [1957]1WLR 582 = (1957) 2 All
ER 118 (QBD).
18. McNair J., in his opinion, explained the law in the following
words:
“Where you get a situation which involves the use of some
special skill or competence, then the test as to whether
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there has been negligence or not is not the test of the man
on the top of a Clapham omnibus, because he has not got
this special skill.  The test is the standard of the ordinary
skilled man exercising and professing to have that special
skill.  A man need not possess the highest expert skill …..
It is well-established law that it is sufficient if he exercises
the ordinary skill of an ordinary competent man exercising
that particular art”
19. The aforesaid principle of law was reiterated and explained
by Bingham L.J. in his speech in Eckersley vs. Binnie (1988) 18 Con
LR 1 in the following words:
“From these general statements it follows that a
professional man should command the corpus of knowledge
which forms part of the professional equipment of the
ordinary member of his profession. He should not lag behind
other ordinary assiduous and intelligent members of his
profession in the knowledge of new advances, discoveries
and developments in his field. He should have such an
awareness as an ordinarily competent practitioner would
have of the deficiencies in his knowledge and the limitations
on his skill. He should be alert to the hazards and risks in
any professional task he undertakes to the extent that other
ordinarily competent members of the profession would be
alert. He must bring to any professional task he undertakes
no less expertise, skill and care than other ordinarily
competent members of his profession
would bring, but need
bring no more. The standard is that of the reasonable
average. The law does not require of a professional man
that he be a paragon combining the qualities of polymath
and prophet.”
20. All along and till date, the law laid down in Bolam’s case
(supra) is consistently followed by all the Courts all over the World
including Indian Courts as laying down the correct principle of law on
the subject.  It is known as Bolam Test.
21. So far as this Court is concerned, a Three Judge Bench in the
case of Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1] examined
this issue.  Chief Justice R.C. Lahoti, (as he then was) speaking for the
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Bench extensively referred to the law laid down in Bolam’s case (supra)
and in Eckersley’s case (supra) and placing reliance on these two
decisions observed in his distinctive style of writing that the classical
statement of law in Bolam’s case (supra) has been widely accepted as
decisive of the standard of care required by both of professional men
generally and medical practitioner in particular and it is invariably cited
with approval before the Courts in India and applied as a touchstone to
test the pleas of medical negligence.
22. It was held that a Physician would not assure the patient of
full recovery in every case. A surgeon cannot and does not guarantee
that the result of surgery would invariably be beneficial, much less to the
extent of 100 % for the person operated on.  The only assurance which
such a professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that branch of
profession which he is practicing and while undertaking the performance
of the task entrusted to him he would be exercising his skill with
reasonable competence. This is what the entire person approaching the
professional can expect. Judged by this standard, a professional may be
held liable for negligence on one of two findings: either he was not
possessed of the requisite skill which he professed to have possessed,
or, he did not exercise, with reasonable competence in the given case,
the skill which he did
possess.
23. It was further observed that the fact that a defendant charged
with negligence acted in accord with the general and approved practice
is enough to clear him of the charge. It was held that the standard of
care, when assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident and not at the date of
trial. It was held that the standard to be applied for judging whether the
person charged has been negligent or not would be that of an ordinary
competent person exercising ordinary skill in that profession.  It is not
possible for every professional to possess the highest level of expertise
or skills in that branch which he practices. His Lordship quoted with
approval the subtle observations of Lord Denning made in Hucks vs.
Cole (1968) 118 New LJ 469, namely,  “a medical practitioner was
not be held liable simply because things went wrong from mischance
or misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another. A medical
practitioner would be held liable only where his conduct fell below
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that of the standards of a reasonably competent practitioner in his
field.”
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 the appellant-a doctor 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.
25. It is not in dispute that the appellant is a professionally trained
doctor and has acquired the post-graduate degree in the subject (FRCS)
from London way back in 1976 and worked there (UK) for seven years
and earned enough experience in the field of surgery. It is also not in
dispute that since 1976/1977, he has been in the field of surgery in India
till the date he performed operation of respondent No.1 on 08.08.1996.
26. 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.
27. It is also not in dispute that initially he proceeded to perform
the laparoscopy surgery of the Gall Bladder of respondent No.1 as advised
but while so performing he noticed some inflammation, adhesion and
swelling on the Gall Bladder and, therefore, decided to perform the
conventional surgery, which he actually did on respondent No.1, to
remove
the Gall Bladder.
28.  According to respondent No.1, the appellant could not have
done so because she had not given her consent to him to perform this
surgery on her.  In other words, according to respondent No.1, she had
given her express consent in writing to perform only “laparoscopy
surgery” but the appellant instead of performing “laparoscopy surgery”
proceeded to perform conventional surgery and in that process removed
her Gall Bladder.  It is due to this reason, according to respondent No.1,
a clear case of negligence on the part of the appellant is made out which
entitles respondent No.1 to claim compensation in terms of money.
29.  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
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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.
30. First, clause 4 of the Consent Form dated 07.08.1996 at page
282 of the SLP paper book, which is duly signed by respondent No.1, in
clear terms, empowers the performing doctor to perform such additional
operation or procedure including the administration of a blood transfusion
or blood plasma as they or he may consider substitute necessary or
proper in the event of any emergency or if any anticipated condition is
discovered during the course of the operation.
31. Second, in terms of clause 4 of the Consent Form, the appellant
was entitled to perform the conventional surgery as a substitute to the
former one having noticed some abnormalities at the time of performing
Laparoscopy that it would not be possible for the team of doctors
attending respondent No.1 to continue further with laparoscopy of the
Gall Bladder.
32. 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.
33. 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.1’s husband who was sitting outside the operation theater about what
the condition of respondent No.1’s 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.
34. 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.
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35. 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.
36.  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.
37. The National Commission while recording the finding on the
issue of consent against the appellant relied upon the decision of this
Court in the case of Samira Kohli vs. Dr. Prabha Manchanda & Anr.
(2008) 2 SCC 1.  In our view, the said decision itself has made an exception
to the cases observing in para 49 of the judgment which reads as under:
“The only exception to this rule is where the additional
procedure though unauthorised, is necessary in order to
save the life or preserve the health of the patient and it
would be unreasonable to delay such unauthorised
procedure until patient regains consciousness and takes a
decision.”
38. 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 respondent No.1’s
husband. 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
No.1’s husband.
39. That apart, we also find that respondent No.1 never raised
the objection of “consent issue” to the appellant or/and opposite party
respondent No.2 - Hospital 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.
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40. It is not in dispute that respondent No.1 failed to prove any
specific kind of negligence of the appellant while performing the operation
or/and thereafter.  Indeed, even the National Commission in Para 18
held this issue in favour of the appellant in following words:
“18. Yet another grievance of the complainant is that she
was not treated with care during her hospitalization from
07.08.96 to 18.08.96. No specific instances which can amount
to carelessness or negligence on the part of the surgeon
or the nursing home have been brought on record and,
therefore, we are unable to hold that there was any lack of
care amounting to negligence during her stay in the nursing
home for which either the surgeon or nursing home can be
made liable.”
41. Likewise the National Commission further held in favour of
the appellant in para 19 that the stones, which were removed in the
second operation at Ganga Ram Hospital after 11 months (04.06.1997)
were the same which were noticed by the appellant while performing
the first surgery on 08.08.1996 and remained inside. In other words,
respondent No.1 failed to prove with the aid of any medical evidence
that the stones, which were noticed in the second surgery performed
after 11 months, were the same stones which the appellant failed to
remove from the Gall Bladder.  It is apposite to note the finding of the
National Commission in para 19 hereinbelow.
“………We have already found that from the material placed
on record that
it is not possible to hold with certainty that
any of the calculi which were removed from the bile duct of
the complainant at Sir Ganga Ram Hospital was the same
for which she had undergone Cholecystectomy at the hands
of the surgeon and, therefore, the only lapse which we can
find on the part of the surgeon is that he did not care to
bestow the kind of attention which the problem of
complainant required when she consulted him after the
procedure of Cholecystectomy, more particularly during
April-May 1997……….”
42. Had it been so, the appellant could be held liable for failure on
his part to remove the stones and allowed them to remain in the Gall
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Bladder for such a long time.  There was no medical evidence adduced
by respondent No.1 to prove this fact.
43. 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 (conventional surgery) of Gall
Bladder except raising the issue of “non-giving of express consent”.
This 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.
44. 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.
45. 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.
46. Learned counsel for respondent No.1 (complainant) vehemently
argued that respondent No.1 suffered immensely due to the surgery
performed by the appellant and that she was rightly, therefore, awarded
the compensation by the National Commission.
47.  Learned counsel for respondent No.1 also placed reliance on
the Discharge Certificate which, according to her, mentions that
Laparoscopy surgery was performed on respondent No.1.  On this basis,
learned counsel contended that respondent No.1 had not given her
consent for performing general surgery.
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48. 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.
49. It is apt to remember the words of the then Chief Justice of
India when he said in Jacob Mathew’s case (supra) which reads as
under:
 “The subject 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
the doctor’s contribution 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
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negligence in future.  The human body and medical 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 an in-depth
understanding 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.”
50. In the light of what we have held above, we cannot concur
with the reasoning and the conclusion arrived at by the National
Commission. As a consequence, the appeal succeeds and is accordingly
allowed. The impugned order is set aside and that of the order passed by
the State Commission is restored.
Divya Pandey
                                Appeal allowed.