No prompt arrest of doctors on Medical
Negligence
Noting
that frivolous complaints against doctors have increased by leaps and bounds,
the Supreme Court on
No
prompt arrest of doctors on Medical Negligence: Supreme Court of India
THE
DETAIL JUDGEMENT
In the Supreme Court of
Civil Appellate Jurisdiction: Civil
Appeal No. 3541 of 2002
Martin F. D'souza …Appellant Vs Mohd.
Ishfaq ...Respondent
Judgment: Markandey Katju, J.
1. 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
5. On or
about 24.4.1991, the respondent reached
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
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 :-
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
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
16. On
11.6.1991, the respondent attended the Haemodialysis Unit and complained to the
appellant that he had slight tinnitus (ringing in the ear). The appellant has
alleged that he immediately told the respondent to stop taking the Amikacin and
Augmentin and scored out the treatment on the discharge card. However, despite
express instructions from the appellant, the respondent continued to take
Amikacin till 17.6.1991. Thereafter, the appellant was not under the treatment
of the appellant.
17. On
14.6.1991, 18.6.1991 and 20.6.1991 the respondent received haemodialysis at
18. On
25.6.1991, the respondent, on his own accord, was admitted to
19. On
30.7.1991, the respondent was operated upon for transplant after he had ceased
to be under the treatment of the appellant. On 13.8.1991, the respondent was
discharged from
20. On
7.7.1992, the respondent filed a complaint before the National Consumer
Disputes Redressal Commission,
21. The
National Consumer Disputes Redressal Commission (hereinafter referred to as
`the Commission') passed an order on 6.10.1993 directing the 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.
22. AIIMS
nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the All India
Institute of Medical Sciences 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.
23.
Evidence was thereupon led before the Commission. Two affidavits by way of
evidence were filed on behalf of the respondent, being that of his wife and
himself. The witnesses for the respondent were:-
i) The
respondent Mohd. Ishfaq
ii) The
wife of the respondent
iii) Dr.
Ashok Sareen
iv) Dr.
Vindu Amitabh
24. On
behalf of the appellant, six affidavits by way of evidence were filed. These
were of the appellant himself, Dr. Danbar (a doctor attached to the
Haemodialysis Department of Nanavati Hospital), Dr. Abhijit Joshi (a Resident
Senior Houseman of Nanavati Hospital), Mrs. Mukta Kalekar (a Senior sister at
Nanavati Hospital), Dr. Sonawala (the Urologist who referred the respondent to
the appellant) and Dr. Ashique Ali Rawal (a Urologist attached to Prince Aly
Khan Hospital). The witnesses for the appellant were:-
i) The
appellant-Dr. M.F. D'Souza
ii) Dr. Danbar
iii) Dr.
Upadhyay
iv) Mrs.
Mukta Kalekar
v) Dr.
Ashique Ali Rawal
25. The
respondent also filed an opinion of the Chief of Nephrology at
26. The
case of the respondent, in brief, is that the appellant was negligent in
prescribing Amikacin to the respondent of 500 mg twice a day for 14 days as
such dosage was excessive and caused hearing impairment. It is also the case of
the respondent that the infection he was suffering from was not of a nature as to
warrant administration of Amikacin to him.
27. The
appellant submitted before the Commission that at the time of admission of the
respondent on 29.5.1991 to the hospital, he had fever of 1040F and, after
investigation, it was found that his serum Creatinine level was 13 mg%, blood
urea 180 mg% and Hemoglobin 4.3 mg. Amikacin was prescribed to him only after
obtaining blood and urine culture reports on 3rd and 4th June, 1991, which
showed the respondent resistant to other antibiotics. Even the witness of the
respondent (Dr. Sareen) conceded that he would have prescribed Amikacin in the
facts of the case. 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.
28. Before
discussing the facts of the case, we would like to state the law regarding
Medical Negligence in
29. Cases,
both civil and criminal as well as in Consumer Fora, are often filed against
medical practitioners and hospitals, complaining of medical negligence against
doctors/hospitals/ nursing homes and hence the latter naturally would like to
know about their liability.
30. The
general principles on this subject have been lucidly and elaborately explained
in the three Judge Bench decision of this Court in Jacob Mathew vs. State of
31. For
instance, in para 41 of the aforesaid decision it was observed : "The
practitioner must bring to his task a reasonable degree of skill and knowledge,
and must exercise a reasonable degree of care. Neither the very highest nor a
very low degree of care and competence is what the law requires."
32. Now
what is reasonable and what is unreasonable is a matter on which even experts
may disagree. Also, they may disagree on what is a high level of care and what
is a low level of care.
33. To give
another example, in paragraph 12 to 16 of Jacob Mathew's case (Supra), it has
been stated that simple negligence may result only in civil liability, but
gross negligence or recklessness may result in criminal liability as well. For
civil liability only damages can be imposed by the Court but for criminal
liability the Doctor can also be sent to jail (apart from damages which may be
imposed on him in a civil suit or by the Consumer Fora). However, what is
simple negligence and what is gross negligence may be a matter of dispute even
among experts.
34. The
law, like medicine, is an inexact science. One cannot predict with certainty an
outcome of many cases. It depends on the particular facts and circumstances of
the case, and also the personal notions of the Judge concerned who is hearing
the case. However, the broad and general legal principles relating to medical
negligence need to be understood.
35. Before
dealing with these principles two things have to be kept in mind : (1) Judges
are not experts in medical science, rather they are lay men. This itself often
makes it somewhat difficult for them to decide cases relating to medical
negligence. Moreover, Judges have usually to rely on testimonies of other
doctors which may not necessarily in all cases be objective, since like in all
professions and services, doctors too sometimes have a tendency to support
their own colleagues who are charged with medical negligence. The testimony may
also be difficult to understand,particularly in complicated medical matters,
for a layman in medical matters like a Judge; and (2) A balance has to be
struck in such cases. While doctors who cause death or agony due to medical
negligence should certainly be penalized, it must also be remembered that like
all professionals doctors too can make errors of judgment but if they are
punished for this no doctor can practice his vocation with equanimity.
Indiscriminate proceedings and decisions against doctors are counterproductive
and serve society no good. They inhibit the free exercise of judgment by a
professional in a particular situation.
36. Keeping
the above two notions in mind we may discuss the broad general principles
relating to medical negligence.
General
Principles Relating to Medical Negligence
37. As
already stated above, the broad general principles of medical negligence have
been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of
38. The
basic principle relating to medical negligence is known as the BOLAM Rule. This
was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital
Management Committee (1957) 1 WLR 582 as follows : "Where you get a
situation which involves the use of some special skill or competence, then the test
as to whether 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."
Bolam's test has been approved by the Supreme Court in Jacob Mathew's case.
39. In
Halsbury's Laws of England the degree of skill and care required by a medical
practitioner is stated as follows:
"The
practitioner must bring to his task a reasonable degree of skill and knowledge,
and must exercise a reasonable degree of care. Neither the very highest nor a
very low degree of care and competence, judged in the light of the particular
circumstances of each case, is what the law requires, and a person is not
liable in negligence because someone else of greater skill and knowledge would
have prescribed different treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance with a practice accepted as
proper by a responsible body of medical men skilled in that particular art,
even though a body of adverse opinion also existed among medical men. Deviation
from normal practice is not necessarily evidence of negligence. To establish
liability on that basis it must be shown 1) that there is a usual and normal
practice;
2) That the
defendant has not adopted it; and 3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he been acting with
ordinary care."
(Emphasis
supplied)
40.
Eckersley vs. Binnie (1988) 18 Con LR 1 summarized the Bolam test 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 awareness as an ordinarily competent 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 a polymath and prophet."
41. A
medical practitioner is not liable to be held negligent simply because things
went wrong from mischance or misadventure or through an error of judgment in
choosing one reasonable course of treatment in preference to another. He would
be liable only where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. For instance, he would be
liable if he leaves a surgical gauze inside the patient after an operation vide
Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others,
AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be
also criminally liable if he operates on someone for removing an organ for
illegitimate trade.
42. There
is a tendency to confuse a reasonable person with an error free person. An
error of judgment may or may not be negligent. It depends on the nature of the
error.
43. It is
not enough to show that there is a body of competent professional opinion which
considers that the decision of the accused professional was a wrong decision,
provided there also exists a body of professional opinion, equally competent,
which supports the decision as reasonable in the circumstances. As Lord Clyde
stated in Hunter vs. Hanley 1955 SLT 213 : "In the realm of diagnosis and
treatment there is ample scope for genuine difference of opinion and one man
clearly is not negligent merely because his conclusion differs from that of
other professional men.... The true test for establishing negligence in diagnosis
or treatment on the part of a doctor is whether he has been proved to be guilty
of such failure as no doctor of ordinary skill would be guilty of if acting
with ordinary care...."
(Emphasis
supplied)
44. The
standard of care has to be judged in the light of knowledge available at the
time of the incident and not at the date of the trial. Also, where the charge
of negligence is of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that point of time.
45. The
higher the acuteness in an emergency and the higher the complication, the more
are the chances of error of judgment. At times, the professional is confronted
with making a choice between the devil and the deep sea and has to choose the
lesser evil. The doctor is often called upon to adopt a procedure which
involves higher element of risk, but which he honestly believes as providing
greater chances of success for the patient rather than a procedure involving
lesser risk but higher chances of failure. Which course is more appropriate to
follow, would depend on the facts and circumstances of a given case but a
doctor cannot be penalized if he adopts the former procedure, even if it
results in a failure. The usual practice prevalent nowadays is to obtain the
consent of the patient or of the person in-charge of the patient if the patient
is not in a position to give consent before adopting a given procedure.
46. There
may be a few cases where an exceptionally brilliant doctor performs an
operation or prescribes a treatment which has never been tried before to save
the life of a patient when no known method of treatment is available. If the
patient dies or suffers some serious harm, should the doctor be held liable? In
our opinion he should not. Science advances by experimentation, but experiments
sometime end in failure e.g. the operation on the Iranian twin sisters who were
joined at the head since birth or the first heart transplant by Dr. Barnard in
47. Simply
because a patient has not favorably 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 since the professional reputation of the
professional would be at stake. A single failure may cost him dear in his
lapse.
48. As
observed by the Supreme Court in Jacob Mathew's case : "A medical
practitioner faced with an emergency ordinarily tries his best to redeem the
patient out of his suffering. He does not gain anything by acting with
negligence or by omitting to do an act. Obviously, therefore, it will be for
the complainant to clearly make out a case of negligence before a medical
practitioner is charged with or proceeded against criminally. A surgeon with
shaky hands under fear of legal action cannot perform a successful operation
and a quivering physician cannot administer the end-dose of medicine to his
patient. If the hands be trembling with the dangling fear of facing a criminal
prosecution in the event of failure for whatever reason - whether attributable
to himself or not, neither can a surgeon successfully wield his life-saving
scalpel to perform an essential surgery, nor can a physician successfully
administer the life-saving dose of medicine. Discretion being the better part
of velour, a medical professional would feel better advised to leave a terminal
patient to his own fate in the case of emergency where the chance of success
may be 10% (or so), rather than taking the risk of making a last ditch effort
towards saving the subject and facing a criminal prosecution if his effort
fails. Such timidity forced upon a doctor would be a disservice to
society."
49. When a
patient dies or suffers some mishap, there is a tendency to blame the doctor
for this. Things have gone wrong and, therefore, somebody must be punished for
it. However, it is well known that even the best professionals, what to say of
the average professional, sometimes have failures. A lawyer cannot win every
case in his professional career but surely he cannot be penalized for losing a
case provided he appeared in it and made his submissions.
50. To
fasten liability in criminal proceedings e.g. under Section 304A IPC the degree
of negligence has to be higher than the negligence which is enough to fasten
liability in civil proceedings. Thus for civil liability it may be enough for
the complainant to prove that the doctor did not exercise reasonable care in
accordance with the principles mentioned above, but for convicting a doctor in
a criminal case, it must also be proved that this negligence was gross
amounting to recklessness.
51. The
difference between simple negligence and gross negligence has broadly been
explained in paragraphs 12 to 16 of Jacob Mathew's case, though difficulties
may arise in the application of the principle in particular cases. For
instance, if a mop is left behind in the stomach of a patient while doing an
operation, would it be simple negligence or gross negligence? If a scissors or
sharp edged medical instrument is left in the patient's body while doing the
operation would that make a difference from merely leaving a mop?
52. The
professional is one who professes to have some special skill. A professional
impliedly assures the person dealing with him (i) that he has the skill which
he professes to possess, (ii) that skill shall be exercised with reasonable
care and caution.
53. Judged
by this standard, 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. Thus a doctor who has a qualification in Ayurvedic or Homeopathic
medicine will be liable if he prescribes Allopathic treatment which causes some
harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332. In Dr.
Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on
10.10.2006, the National Consumer Commission held a homeopath liable for
negligence for prescribing allopathic medicines and administering glucose drip
and giving injections. Protection to Doctors in Criminal Cases
54. In para
52 of Jacob Mathew's case the Supreme Court realizing that doctors have to be protected
from frivolous complaints of medical negligence, has laid down certain rules in
this connection:
(i) A
private complaint should not be entertained unless the complainant has produced
prima facie evidence before the court in the form of a credible opinion given
by another competent doctor to support the charge of rashness or negligence on
the part of the accused doctor.
(ii) The
investigating officer should, before proceeding against the doctor accused of
rash or negligent act or omission, obtain an independent and competent medical
opinion, preferably from a doctor in government service, qualified in that
branch of medical practice who can normally be expected to give an impartial
opinion applying the Bolam test.
(iii) A
doctor accused of negligence should not be arrested in a routine manner simply
because a charge has been leveled against him. Unless his arrest is necessary
for furthering the investigation or for collecting evidence or unless the
investigating officer feels satisfied that the doctor proceeded against would
not make himself available to face the prosecution unless arrested, the arrest
should be withheld. Precautions which Doctor/Hospitals/Nursing Homes should
take:
(a) Current
practices, infrastructure, paramedical and other staff, hygiene and sterility
should be observed strictly. Thus, in Sarwat Ali Khan vs. Prof. R. Gogi and
others Original Petition No.181 of 1997, decided on 18.7.2007 by the National
Consumer Commission, the facts were that out of 52 cataract operations performed
between 26th and
(b) No
prescription should ordinarily be given without actual examination. The
tendency to give prescription over the telephone, except in an acute emergency,
should be avoided.
(c) A
doctor should not merely go by the version of the patient regarding his
symptoms, but should also make his own analysis including tests and
investigations where necessary.
(d) A
doctor should not experiment unless necessary and even then he should
ordinarily get a written consent from the patient.
(e) An
expert should be consulted in case of any doubt. Thus, in Smt. Indrani
Bhattacharjee, Original Petition No.233 of 1996 decided by the National
Consumer Commission on 9.8.2007, the patient was diagnosed as having `Mild
Lateral Wall Eschemia'. The doctor prescribed medicine for gastro-entiritis,
but he expired. It was held that the doctor was negligent as he should have
advised consulting a Cardiologist in writing.
(f) Full
record of the diagnosis, treatment, etc. should be maintained. Application of
the above mentioned general principles to particular cases:
Decisions
of the Court
55. In Pt.
Parmanand Katara vs. Union of India & Others AIR 1989 SC 2039, the
petitioner referred to a report published in the newspaper "The Hindustan
Times" in which it was mentioned that a scooterist was knocked down by a
speeding car. Seeing the profusely bleeding scooterist, a person who was on the
road, picked up the injured and took him to the nearest hospital. The doctors
refused to attend and told the man that he should take the patient to another
hospital located 20 kilometers away authorized to handle medico-legal cases.
The injured was then taken to that hospital but by the time he could reach, the
victim succumbed to his injuries.
56. The
Supreme Court referred to the Code of Medical Ethics drawn up with the approval
of the Central Government under Section 33 of the Indian Council Medical Act
and observed "Every doctor whether at a Government Hospital or otherwise
has the professional obligation to extend his services for protecting life. The
obligation being total, absolute and paramount, laws of procedure whether in
statutes or otherwise cannot be sustained and, therefore, must give way."
57. The
Supreme Court held that 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. The life of a person is far more important
than legal formalities. This view is in accordance with the Hippocratic Oath of
doctors.
58.
Although this decision has laid down that it is the duty of a doctor to attend
to a patient who is brought to him in an emergency, it does not state what
penalty will be imposed on a doctor who refuses to attend the said patient.
Consequently it will depend on the fact and circumstances of the case.
However, this case is important because nowadays health care has often become a
business, as is mentioned in George Bernard Shaw's play "The Doctor's
Dilemma". The medical profession is a noble profession and it should not
be brought down to the level of a simple business or commerce. The truth of the
matter, sadly, is that today in
59. In
Paschim Banga Khet Mazdoor Samity and others vs. State of
60. In
61. In
Surendra Chauhan vs. State of
62. In
State of Haryana and others vs. Raj Rani (2005) 7 SCC 22 it was held that if a
child is born to a woman even after she had undergone a sterilization operation
by a surgeon, the doctor was not liable because there cannot be a 100%
certainty that no child will be born after a sterilization operation. The Court
followed the earlier view of another three Judge Bench in State of
63. In P.N.
Rao vs. G. Jayaprakasu AIR 1990 AP 207, the plaintiff was a brilliant young boy
who had passed the pre-University course securing 100% marks in Mathematics and
93.5% in physical sciences. He was also getting a monthly scholarship. He was
offered a seat in B.E. Degree course in four Engineering Colleges. He had a
minor ailment - chronic nasal discharge - for which his mother took him to a
doctor for consultation who diagnosed the disease as Nasal Allergy and
suggested operation for removal of tonsils. He was admitted in the
64. In Dr.
Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Another AIR 1969 SC
128, a patient had suffered from fracture of the femur. The accused doctor
while putting the leg in plaster used manual traction and used excessive force
for this purpose, with the help of three men, although such traction is never
done under morphia alone but done under proper general anaesthesia. This gave a
tremendous shock causing the death of the boy. On these facts the Supreme Court
held that the doctor was liable to pay damages to the parents of the boy.
65. In Dr.
Suresh Gupta vs. Government of N.C.T. of
order of
the Magistrate observing that adequate care was not taken to prevent seepage of
blood resulting in asphyxia. The Supreme Court held that from the medical
opinions adduced by the prosecution the cause of death was stated to be `not
introducing a cuffed endotracheal tube of proper size as to prevent aspiration
of blood from the wound in the respiratory passage.' The Supreme Court held
that this act attributed to the doctor, even if accepted to be true, can be
described as a negligent act as there was a lack of care and precaution. For
this act of negligence he was held liable in a civil case but it cannot be
described to be so reckless or grossly negligent as to make him liable in a
criminal case. For conviction in a criminal case the negligence and rashness
should be of such a high degree which can be described as totally apathetic
towards the patient.
66. In Dr.
Sr. Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. the National Consumer
Commission held that Dr. Louie showed herself as an M.D. although she was only
M.D. Freiburg, a German Degree which is equivalent to an M.B.B.S. degree in
67. In
Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112 a patient died a day after
surgery and the relatives found a pair of scissors utilized by the surgeon
while collecting the last remains. The doctor was held liable and a
compensation of Rs.1.20 lakhs was awarded by the State Consumer Forum,
68. In
Spring Medows Hospital & Another vs. Harjol Ahluwalia thr' K.S. Ahluwalia
& Another (1998) CPJ 1, a minor child was admitted by his parents to a
nursing home as he was suffering fever. The patient was admitted and the doctor
diagnosed typhoid and gave medicines for typhoid fever. A nurse asked the
father of the patient to get an injection Lariago which was administered by the
nurse to the patient who immediately collapsed. The doctor was examined and
testified that the child suffered a cardiac arrest on account of the medicine
having being injected which led to brain damage. The National Commission held
that the cause of cardiac arrest was intravenous injection of Lariago of such a
high dose. The doctor was negligent in performing his duty because instead of
administering the injection himself he permitted the nurse to give the
injection. There was clear dereliction of duty on the part of the nurse who was
not even a qualified nurse and was not registered with any nursing council of any
State. Both the doctor and nurse and the hospital were found liable and Rs.12.5
lakhs was awarded as compensation to the parents.
69. In
Consumer Protection Council and Others vs. Dr. M. Sundaram and Another (1998)
CPJ 3, the facts were that one Mrs. Rajalaxmi was admitted to a nursing home
which diagnosed the ailment as Hodgkin's Lymphoma. She was administered Endoxan
injection five doses in five days. She was referred to another doctor who was
an ENT specialist, who after examination opined that no lymph glands were seen.
A sample of her bone marrow was sent to an Oncologist who opined that the
picture does not fit with Hodgkin's disease but the patient had megaloblastic
anemia in the bone marrow. Subsequently she was discharged from the nursing
home and was advised to visit CMC Vellore for treatment. The patient consulted
another doctor who diagnosed the same as renal failure. The complainant alleged
that the first doctor failed and neglected to refer the matter to a Cancer
Specialist but wrongly diagnosed the ailment of the patient as Hodgkin's
Lymphoma and had unnecessarily administered injection of Endoxan and because of
the toxicity of that drug the kidney cells of the patient got destroyed
resulting in renal failure for which she had to undergo kidney transplantation
which led to her death. The National Commission, upholding the State Commission
decision, held that there was no negligence on the part of the doctor who had
consulted a pathologist, and in the light of discussion with him and on inspection
of some more slides of bone marrow specimens which also revealed the same
finding, namely, existence of deposits of Hodgkin's Lymphoma, proceeded to
administer the patient injections of Endoxan. It was held on the basis of
medical opinion that any prudent consultant physician would not delay the
commencement of chemotherapy where repeated examination of the bone marrow
slides had yielded the report that the Hodgkin's deposits were present. Endoxan
is a drug of choice in the treatment of Hodgkin's Lymphoma and there was no
negligence on the part of the doctor.
70. In
Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and Another (1998) CPJ
110, the complainant's wife suffered from Sinusitis and was advised surgery by
the doctor. She had suffered a massive heart attack while in the operation
theatre. The State Commission found that necessary precautions and effective
measures were taken to save the deceased and dismissed the complaint. The State
Commission relied on the affidavits of four doctors who opined that there was
no negligence. The complainant had not given any expert evidence to support his
allegation and in these circumstances it was held that no case was made out
against the doctor.
71. In A.
S. Mittal & Anr. vs. State of U.P. & Ors. JT 1989 (2) SC 419, 1989 (3)
SCC 223 a free eye camp was organized for ophthalmic surgical treatment to
patients. However, the eyes of several patients after operation were
irreversibly damaged, owing to post-operative infection of the intra ocular
cavities of the eyes, caused by normal saline used at the time of surgery. The
Supreme Court directed the State Government to pay Rs.12,500/- as compensation
to each victim as there was a clear negligence.
72. In
Indian Medical Association vs. V.P. Shantha 1995(6) SCC 651 (vide para 37) it
has been held that the following acts are clearly due to negligence:
(i) Removal
of the wrong limb;
(ii)
Performance of an operation on the wrong patient;
(iii)
Giving injection of a drug to which the patient is allergic without looking
into the outpatient card containing the warning;
(iv) Use of
wrong gas during the course of an anaesthetic, etc.
73. From
the aforementioned principles and decisions relating to medical negligence,
with which we agree, it is evident that 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.
74.
However, every doctor should, for his own interest, carefully read the Code of
Medical Ethics which is part of the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002 issued by the Medical Council
of India under Section 20A read with Section 3(m) of the Indian Medical Council
Act. 1956.
75. Having
mentioned the principles and some decisions relating to medical negligence
(with which we respectfully agree), we may now consider whether the impugned
judgment of the Commission is sustainable. In our opinion the judgment of the
Commission cannot be sustained and deserves to be set aside.
76. The
basic principle relating to the law of medical negligence is the Bolam Rule
which has been quoted above. The test in fixing negligence is the standard of
the ordinary skilled doctor exercising and professing to have that special
skill, but a doctor need not possess the highest expert skill. Considering the
facts of the case we cannot hold that the appellant was guilty of medical
negligence.
77. The
facts of the case reveal that the respondent was suffering from chronic renal
failure and was undergoing haemodialysis twice a week on that account. He was
suffering from high fever which remained between 1010-1040F. He refused to get
admitted to hospital despite the advice of the appellant. The appellant
prescribed antibiotics for him. The respondent was also suffering from severe
urinary tract infection which could only be treated by Amikacin or Methenamine
Mandelate. Since Methenamine Mandelate cannot be used in patients suffering
from renal failure, Amikacin injection was administered to him.
78. A
perusal of the complaint filed by the respondent before the National Commission
shows that his main allegation is that he suffered hearing impairment due to
the negligence of the appellant herein who allegedly prescribed overdose of
Amikacin injections without caring about the critical condition of the
respondent which did not warrant that much dose. The complainant (respondent
herein) has alleged that due to this medical negligence the complainant has
suffered mental torture and frustration and other signs of helplessness and is
feeling totally handicapped, and his efficiency in office has got adversely
affected. It may be mentioned that the respondent is working as Export
Promotion Officer in the Ministry of Commerce, Udyog Bhawan,
79. The case
of the appellant, however, is that the complainant was referred to the
appellant by Dr. F. P. Soonawalla, the renowned Urologist of Bombay. The
complainant had consulted Dr. F. P. Soonawalla who had referred the complainant
to the appellant for routine Haemodialysis and pretransplant treatment. In our
opinion, the very fact that Dr. Soonawalla referred the complainant to the
appellant is an indication that the appellant has a good reputation in his
field, because Dr. Soonawalla is an eminent doctor of
80. It
appears that after the complainant was referred to the appellant by Dr.
Soonawalla he met the appellant for the first time on 24.4.1991 as an outdoor
patient in the Haemodialysis Unit attached to
81. The
appellant has alleged in his written statement filed before the National
Commission that the complainant was in a hurry to have a quick kidney
transplant by Dr. Soonawalla and he was very obstinate, stubborn and short-
tempered. Dr. Soonawalla was out of
82. From
21.5.1991, the complainant attended the Haemodialysis unit of the hospital on
three occasions and informed the appellant that the fever had not yet remitted.
The appellant again advised the complainant to get admitted in hospital, but he
refused the advice on account of his obstinacy.
83. On
29.5.1991, the complainant was in a serious condition having high fever of
104OF. After much persuasion he finally agreed to be admitted for final
investigation and got admitted in the hospital on 29.5.1991.
84. The
complainant was investigated on 30.5.1991 and his report showed High Creatinine
- 13 mg. Blood Urea - 180 mg and Haemoglobin 4.3% which was 5 days prior to the
commencement of the injection Amikacin and not after the said injection.
85. In our
opinion it is clear that the respondent already had high Blood Creatinine,
Blood Urea and low Haemoglobin before the injection of Amikacin. He had also
high fever which was on account of serious blood and urinary tract infection.
The appellant was of the view that the respondent's infection could only be
treated by injection of Amikacin, as Methenamine Mandelate could not be used
due to his chronic renal failure. The respondent's report also established his
resistance to all other antibiotics. Gastroscopy was done on 4.6.1991 and Amikacin
was administered after test dosage only from 5.6.1991. Amikacin was
administered on 5th, 6th and
86. The
appellant advised the respondent in view of his blood infection that he should
not get transplanted for six weeks, but the complainant/respondent insisted on
getting the transplant although he was not medically in fit condition. Hence
the appellant advised the respondent to further stay in the hospital for some time,
but the respondent did not agree and he started shouting at the top of his
voice and insisted to be discharged from the hospital on his own on 8.6.1991 at
87. In view
of his insistence the respondent was discharged from the hospital on his own on
8.6.1991 at
1.
Injection Amikacin 500 mg twice a day x 10 days for urinary tract infection.
2. Cap.
Augmentine 375 mg 3 times a day for 6 weeks for blood infection
3. Cap.
Becosule tab daily
4. Tab.
Folvite 1 tab. Daily
5. Syrup
Alludux
6.
Injection Engrex once a month for 2 months
7. Cap.
Bantes 100 mg twice a day"
88. It
appears that the respondent attended the Haemodyalsis unit where he met the
appellant on 11th, 14th, 18th and
89. On
11.6.1991 the respondent complained to the appellant of slight tinnitus or
ringing in the ear. The appellant immediately reviewed the treatment on the
discharge card in possession of the respondent and asked the said respondent
and also asked his attendant i.e. his wife to stop Injection Amikacin and Cap.
Augmantine verbally and also marked `X' on the discharge card in his own hand
writing on 11.6.1991 i.e. 3 days after discharge. Hence, as per direction of
the appellant the respondent should have stopped receiving Injection Amikacin
after 10.6.1991, but on his own he kept on taking Amikacin Injections. The
Discharge Card as per the respondent's complaint clearly shows that the said
injection had been `X' crossed, and he was directed not to take the said
injection from 11.6.1991 i.e. on his very first complaint when he made mention
of ringing in the ears or tinnitus.
90. On
perusal of the Xerox copies of the papers of the Cash Memo supplied by the
respondent as per annexure `4' it is in our opinion evident that the respondent
continued to take the medicine against the advice of the appellant, and had
unilaterally been getting injected as late as 17.6.1991, i.e. 7 days after he
had been instructed verbally and in writing in the presence of his attendant
i.e. his wife and staff members of the said hospital to stop Injection
Amikacin/Cap. Augmantine because of tinnitus as early as on 11.6.1991
91. On
19.6.1991 a relative of the respondent who identified himself on the phone as
one Mr. Khan from Byculla rang up and stated that the said respondent was once
again running high fever. The appellant once again immediately advised him
urgent admission to the said hospital which the respondent refused to comply
and said that he would go elsewhere.
92. From
the above facts it is evident that the appellant was not to blame in any way
and it was the non-cooperative attitude of the respondent, and his continuing
with the Amikacin injection even after 11.6.1991 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.
93. It is
evident from the fact that the respondent was already seriously ill before he
met the appellant. There is nothing to show from the evidence that the
appellant was in any way negligent, rather it appears that the appellant did
his best to give good treatment to the respondent to save his life but the
respondent himself did not cooperate.
94. Several
doctors have been examined by the National Commission and we have read their
evidence which is on record. Apart from that, there is also the opinion of
Prof. P. Ghosh of All India Institute of Medical Sciences who had been
nominated by AIIMS as requested by the Commission, which is also on record. It
has been stated by Dr. Ghosh that many factors in the case of renal diseases
may cause hearing loss. Prof. Ghosh has stated that it is impossible to
foretell about the sensitivity of a patient to a drug, thereby making it
difficult to assess the contributions towards toxicity by the other factors
involved. Hearing loss in renal patients is a complex problem which is a result
of many adverse and unrelated factors. Generally, the state of hearing of a
renal patient at any time is more likely to be the result of a multifactorial
effect than the response to a single agent.
95. Prof
Ghosh has no doubt mentioned that concomitant use of Aminoglycoside antibiotics
(e.g. Amikacin) and loop diuretic may lead to summation and potentiation of
ototoxic effect, and the patient has a higher risk factor of hearing impairment
if there is a higher dose of Amikacin. However, he has stated that such gross
impairment of the balancing function has perhaps been wrought by a combination
of factors.
96. Prof
Ghosh has also opined that the Amikacin dose of 500 mg twice a day for 14 days
prescribed by the doctor was a life saving measure and the appellant did not
have any option but to take this step. Life is more important than saving the
function of the ear. Prof Ghosh was of the view that antibiotic was rightly
given on the report of the sensitivity test which showed that the organisms
were sensitive to Amikacin. Hence the antibiotic was not blindly used on a
speculation or as a clinical experiment.
97. Prof
Ghosh mentioned that in the literature on Amikacin it has been mentioned that
in a life threatening infection adult dosage may be increased to 500 mg every
eight hours but should not be administered for longer than 10 days.
98. In view
of the opinion of Prof Ghosh, who is an expert of the All India Institute of
Medical Sciences, we are clearly of the view that the appellant was not guilty
of medical negligence and rather wanted to save the life of the respondent. 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.
99. We have
also seen the evidence of other doctors as well as the affidavits filed before
the National Commission. No doubt some of the doctors who have deposed in this
case have given different opinions, but in cases relating to allegations of
medical negligence this Court has to exercise great caution.
100. Dr.
Ashok Sareen who is MD in medicine and trained in Nephrology has in his
evidence stated that for Kidney failure patients one has to be very careful
with the drug Amikacin. He stated that he uses the drug only when other
antibiotics have failed or cannot be used. It should be used with wide
intervals and only when absolutely necessary and when no other drug is
available. When asked whether Amikacin should be given to a patient with 10
days stretch, as was prescribed by the appellant in this case, Dr. Sareen
replied that it was difficult to give an answer to that question because it
depends entirely on the treating physician. Dr. Sareen has admitted that giving
Amikacin injection twice a day for 14 days can cause nerve deafness which means
losing one's hearing. No doubt, Dr. Sareen in his cross- examination stated
that he would have prescribed the dose given to the respondent differently but
he has not stated what would be the dose he would have prescribed.
101. We
have also perused the evidence of Dr. Vindu Amitabh, who is a MD in medicine in
Safdarjung hospital and looking after Nephrology also. He has stated that
normally Amikacin is given for 5 to 7 days twice daily. However, he has also
stated that in severe circumstances it can be given for a longer period but if
the patient is developing complications then the doses should be stopped
immediately. If there is no substitute for it then Amikacin should be given in
a very guarded dose. He has admitted that Amikacin can lead to deafness.
102. In the
affidavit of Dr. Raval of the Bombay Indian Inhabitant, who has been practicing
in Urology for several years it is stated that the respondent had undergone a
kidney transplant operation under Dr. Raval's supervision on
103. An
affidavit has also been filed by Dr. Sharad M. Sheth, of
"I
state that in the circumstances of the case when Klebsiella Organism was found
resistant to all powerful drugs inclusive of Augmentin with the exception of
Amikacin any nephrologist of a reasonable standard of proficiency would have
prescribed "Amikacin" drug in measured doses as a life saving drug
despite the well established fact that this drug might cause `tinnitus' or
partial hearing impairment which is reversible, to almost complete extent in
most of the cases after discontinuation of the drug as soon as any of the above
symptoms makes its appearance. I state
that in
this situation, `Amikacin' could not have been avoided if the danger to the
life of the patient had to be thwarted. The diagnosis of Dr. M.F. D'Souza and
the line of treatment adopted and administered to the said Shri Mohd. Ishaq,
who was suffering from a renal failure in addition to the above specific
infections, appears to be correct."
104. The
appellant has also filed his own affidavit before the National Consumer
Commission which we have perused. We have also seen the affidavit of Dr. Ashok
L. Kirpalani of Lady Ratan Tata Medical Centre,
105. We may
also refer to the affidavit of Mrs. Mukta Kolekar of
"I
know Dr. Martin F.D'Souza who is a Nephrologist and who is attached to the said
hospital since 1984. I say that I know Mr. Mohd. Ishaq. I distinctly remember
him, as very few patients are as ill-tempered arrogant and obstinate like him.
The said Mohd. Ishaq came to the said hospital as an outdoor as well as indoor
patient for Haemodialysis on a number of occasions commencing from the month of
April, 14th 1991 till 20th June, 1991 till 8th June, 1991 until suo moto he
left the hospital. I say that on
106. From these
deposition and affidavits it cannot be said that the appellant was negligent.
In fact most of the doctors who have deposed or given their affidavits before
the Commission have stated that the appellant was not negligent.
107. In his
written statement filed before the National Commission the appellant has stated
in paragraph 9 (q-r) as follows:
"(q)
On
(r) On
perusal of the Xerox copies of the papers of the Cash Memo supplied by the
Complainant as per Annexure `4' it is evident that the Complainant against the
advice of the Opposite Party and in breach of assurances, high handedly and
unilaterally had been getting injected as late as 17th June, 1991 i.e. 7 days
after he had been instructed verbally and in writing in the presence of his
attendant i.e. his wife and staff members of the said hospital to stop
Injection Amikacin/Cap. Augmentin because of tinnitus as early as 11th June,
1991"
108. We see
no reason to disbelieve the above allegations of the appellant that on
11.6.1991 he had asked the respondent to stop taking Amikacin injections, and
in fact this version is corroborated by the testimony of the Senior Sister
Mukta Kolekar in her affidavit, relevant part of which has been quoted above.
Hence, it was the respondent himself who is to blame for having continued
Amikacin after 11.6.1991against the advice of the appellant.
109.
Moreover, in the statement of Dr. Ghosh before the National Consumer Dispute
Redressal Commission it has been stated that it is by no means established that
Amikacin alone can cause deafness. Dr. Ghosh stated that there are 8 factors
that can cause loss of hearing. Moreover, there are conflicting versions about
the deafness of the respondent. While the respondent stated that he became deaf
in June 1991, most of the Doctors who filed affidavits before the Commission
have stated that they freely conversed with him in several meetings much after
21st June and in fact up to the middle of August 1991.
110. The
National Commission had sought the assistance of AIIMS to give a report about
the allegations of medical negligence against the appellant. AIIMS had
appointed Dr. Ghosh to investigate the case and submit a report and Dr. Ghosh
submitted a report in favour of appellant. Surprisingly, the Commission has not
placed much reliance on the report of Dr. Ghosh, although he is an outstanding
ENT specialist of international repute.
111. We
have carefully perused the judgment of the National Commission and we regret
that we are unable to concur with the views expressed therein. The Commission,
which consists of laymen in the field of medicine, has sought to substitute its
own views over that of medical experts, and has practically acted as
super-specialists in medicine. Moreover, it has practically brushed aside the
evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well
as the affidavits of several other doctors (referred to above) who have stated
that the appellant acted correctly in the situation he was faced. 112. The
Commission should have realized that different doctors have different
approaches, for instance, some have more radical while some have more
conservative approaches. All doctors cannot be fitted into a straight-jacketed
formula, and cannot be penalized for departing from that formula.
113. While
this Court has no sympathy for doctors who are negligent, it must also be said
that frivolous complaints against doctors have increased by leaps and bounds in
our country particularly after the medical profession was placed within the
purview of the Consumer Protection Act. To give an example, earlier when a
patient who had a symptom of having a heart attack would come to a doctor, the
doctor would immediately inject him with Morphia or Pethidine injection before
sending him to the Cardiac Care Unit (CCU) because in cases of heart attack
time is the essence of the matter. However, in some cases the patient died
before he reached the hospital. After the medical profession was brought under
the Consumer Protection Act vide Indian Medical Association vs. V.P. Shantha
1995 (6) SCC 651 doctors who administer the Morphia or Pethidine injection are
often blamed and cases of medical negligence are filed against them. The result
is that many doctors have stopped giving (even as family physicians) Morphia or
Pethidine injection even in emergencies despite the fact that from the symptoms
the doctor honestly thought that the patient was having a heart attack. This
was out of fear that if the patient died the doctor would have to face legal
proceedings.
114. Similarly
in cases of head injuries (which are very common in road side accidents in
115. Hence
Courts/Consumer Fora should keep the above factors in mind when deciding cases
related to medical negligence, and not take a view which would be in fact a
disservice to the public. The decision of this Court in Indian Medical
Association vs. V.P. Shantha (Supra) 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. In fact in the
aforesaid decision it has been observed (vide para 22) :-
"In
the matter of professional liability professions differ from other occupations
for the reason that professions operate in spheres where success cannot be
achieved in every case and very often success or failure depends upon factors
beyond the professional man's control."
116. It may
be mentioned that the All India Institute of Sciences has been doing
outstanding research in Stem Cell Therapy for the last eight years or so for
treating patients suffering from paralysis, terminal cardiac condition,
parkinsonism, etc, though not yet with very notable success. This does not mean
that the work of Stem Cell Therapy should stop, otherwise science cannot
progress.
117. We,
therefore, direct that whenever a complaint is received against a doctor or
hospital by the Consumer Fora (whether District, State or National) or by the
Criminal Court then before issuing notice to the doctor or hospital against
whom the complaint was made the Consumer Forum or Criminal Court should first
refer the matter to a competent doctor or committee of doctors, specialized in
the field relating to which the medical negligence is attributed, and only
after that doctor or committee reports that there is a prima facie case of
medical negligence should notice be then issued to the concerned
doctor/hospital. This is necessary to avoid harassment to doctors who may not
be ultimately found to be negligent. We further warn the police officials not
to arrest or harass doctors unless the facts clearly come within the parameters
laid down in Jacob Mathew's case (supra), otherwise the policemen will
themselves have to face legal action.
118. In the
present case the appellant was faced with an extremely serious situation. Had
the appellant been only suffering from renal failure it is possible that a view
could be taken that the dose prescribed for the appellant was excessive.
However, the respondent was not only suffering from renal failure but he was
also suffering from urinary tract infection and also blood infection i.e
Septicaemia which is blood poisoning caused by bacteria or a toxin. He had also
extremely high urea. In this extremely serious situation, the appellant had
naturally to take a drastic measure to attempt to save the life of the
respondent. The situation was aggravated by the non-cooperation of the
respondent who seems to be of an assertive nature as deposed by the witnesses.
Extraordinary situations require extraordinary remedies. Even assuming that
such a high dose of Amikacin would ordinarily lead to hearing impairment, the
appellant was faced with a situation between the devil and the deep sea. If he
chose to save the life of the patient rather than his hearing surely he cannot
faulted.
119. In the
present case the blood urea of the respondent was found to be 180 mgs.% whereas
normally it should not exceed 10-50 mgs.%. This shows that very serious
infection in the kidney of the respondent was taking place which required
drastic measures.
120. The
allegation against the appellant is that he gave overdose of the antibiotic. In
this connection it may be mentioned that antibiotics are usually given for a
minimum of five days, but there is no upper limit to the number of days for
which they should continue, and it all depends on the condition of the patient.
Giving lesser dose of antibiotic may create other complications because it can
cause resistance in the bacteria to the drug, and then it will be more
difficult to treat.
121. As
regards the impairment of hearing of the respondent it may be mentioned that
there is no known antibiotic drug which has no side effect. Hence merely because
there was impairment in the hearing of the respondent that does not mean that
the appellant was negligent. The appellant was desperately trying to save the
life of the respondent, which he succeeded in doing. Life is surely more
important than side effects.
122. For
example many Anti Tubercular drugs (e.g. Streptomycin) can cause impairment of
hearing. Does this mean that TB patients should be allowed to die and not be
given the Anti Tubercular drug because it impairs the hearing? Surely the
answer will be in the negative.
123. The
courts and Consumer Fora are not experts in medical science, and must not
substitute their own views over that of specialists. It is true that the
medical profession has to an extent become commercialized and there are many doctors
who depart from their Hippocratic Oath for their selfish ends of making money.
However, the entire medical fraternity cannot be blamed or branded as lacking
in integrity or competence just because of some bad apples.
124. It
must be remembered that sometimes despite their best efforts the treatment of a
doctor fails. For instance, sometimes despite the best effort of a surgeon, the
patient dies. That does not mean that the doctor or the surgeon must be held to
be guilty of medical negligence, unless there is some strong evidence to
suggest that he is.
125. On the
facts of this particular case, we are of the opinion that the appellant was not
guilty of medical negligence. Resultantly, the appeal is allowed; the impugned
judgment and order of the National Commission is set aside. No costs.
......................J.
[Markandey
Katju]
.....................J.
[R.M.
Lodha]