Supreme Court of India
ARUN KUMAR MANGLIKversusCHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR.
- Citation
- 2019 INSC 43
- Decided
- 9 January 2019
- Disposal
- Appeal(s) allowed
- Bench
- D Y CHANDRACHUD
Holding
The hospital was liable for medical negligence, the director was not personally liable, the NCDRC's reversal was unsustainable, and compensation was enhanced to Rs.15 lakhs.
Summary
The appellant, Arun Kumar Manglik, claimed that his wife died due to medical negligence by Chirayu Health & Medicare Private Ltd. and its director after being admitted with dengue. The State Consumer Disputes Redressal Commission (SCDRC) found negligence and awarded Rs.6 lakh, but the National Consumer Disputes Redressal Commission (NCDRC) reversed that finding and dismissed the claim. The Supreme Court held that the hospital failed to monitor critical blood parameters as required by WHO and national dengue guidelines, thereby breaching the standard of reasonable care. The Court affirmed the hospital’s liability but held that the director, who was not the treating doctor, could not be personally liable. It also enhanced the compensation to Rs.15 lakh with interest, finding the SCDRC’s award inadequate.
Issues considered
- Whether the hospital and its treating doctors were negligent in the management of a dengue patient.
- Whether the Director of the hospital can be held personally liable for medical negligence.
- Whether the NCDRC was justified in overturning the factual findings of the SCDRC.
- What quantum of compensation is appropriate for the death of a non‑working homemaker spouse.
- How the Bolam test and the evolving standard of care apply to medical negligence cases.
Legislation cited
Subjects
medical negligencestandard of careBolam testconsumer protectioncompensationdengue managementhospital liabilitydirector liability
Judgment
[2019] 3 S.C.R. 281 281
ARUN KUMAR MANGLIK A
v.
CHIRAYU HEALTH AND MEDICARE PRIVATE LTD. & ANR.
(Civil Appeal Nos. 227-228 of 2019)
JANUARY 09, 2019 B
[DR. DHANANJAYA Y. CHANDRACHUD AND
HEMANT GUPTA, JJ.]
Negligence:
Medical Negligence – Complaint before Medical Council of C
India – Alleging medical negligence leading to death of the wife of
the complainant – Medical Council found that treatment given was
not timely and the Director of the Hospital and the other doctor,
both were guilty of professional misconduct – The Council issued a
warning to the doctors directing them to be more careful in future –
D
Complaint before State Consumer Disputes Redressal Commission
(SCDRC) seeking compensation of Rs. 48 lakhs – SCDRC held that
medical negligence was established and awarded compensation of
Rs.6 lakhs with interest @ 9% – National Consumer Disputes
Redressal Commission (NCDRC) reversing the finding of SCDRC,
rejected the claim of the complainant – On appeal, held: The medical E
treatment provided in the present case was not in accordance with
WHO Guidelines as well as Guidelines prescribed by the Directorate
of National Vector Borne Diseases Control Programme – Thus, the
respondent-hospital failed to satisfy the standard of reasonable care
as laid down in the *Bolam case – NCDRC without any cogent
F
reason, reversed the findings of fact reached by SCDRC – However,
since the Director of the hospital was not a treating doctor nor the
referring doctor, hence cannot be held personally liable for medical
negligence – The respondent-hospital is held liable for medical
negligence – The compensation granted by SCDRC is also
inadequate and hence it is enhanced to Rs. 15 lakhs with interest G
@ 9% – Consumer Protection Act, 1986.
Medical Negligence – Ascertainment of – Held: A medical
practitioner would be liable for medical negligence only where the
conduct falls below the standards of a reasonably competent
practitioner in the field – While adopting standard of care, Indian H
281
282 SUPREME COURT REPORTS [2019] 3 S.C.R.
A courts must be conscious of the fact that a large number of hospitals
and medical units in the country, do not have access to latest
technology and medical equipment – The threshold to prove
unreasonableness is set with due regard to the risks associated with
medical treatment and the conditions under which medical
professionals function – Where unreasonableness in professional
B
conduct has been proved, a professional cannot escape liability
for medical evidence merely by relying on a body of professional
opinion.
Compensation:
C Compensation for the death of home-maker spouse who is
not employed – Held: Contribution made by a non-working spouse
to the welfare of the family has an economic equivalence – Therefore,
for computing compensation payable for the death of a home-maker,
the Court must bear in mind that the contribution is significant and
capable of being measured in monetary terms.
D
Allowing the appeals, the Court
HELD: 1.1 The standard of care which is expected of a
medical professional is the treatment which is expected of one
with a reasonable degree of skill and knowledge. A medical
E practitioner would be liable only where the conduct falls below
the standards of a reasonably competent practitioner in the field.
[Para 29] [296-G]
Kusum Sharma v Batra Hospital and Medical Research
Centre (2010) 3 SCC 480 : [2010] 2 SCR 685
F – relied on.
1.2 Medical negligence jurisprudence in India is
characterized by a reliance on the *‘Bolam test’. The *‘Bolam
test’ has been the subject of academic debate and evaluation in
India and other jurisdictions. Among scholars, the *‘Bolam test’
has been criticized on the ground that it fails to make the
G
distinction between the ordinary skilled doctor and the reasonably
competent doctor. The former places emphasis on the standards
adopted by the profession, while the latter denotes that
negligence is concerned with departures from what ought to have
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been done in the circumstances and may be measured by A
reference to the hypothetical “reasonable doctor”. The Court
must determine what the reasonable doctor would have done and
not the profession. Law must take into account advances in
medical science and ensure that a patient-centric approach is
adopted. The standard of care as enunciated in the *Bolam case
B
must evolve in consonance with its subsequent interpretation by
English and Indian Courts. Significantly, the standard adopted by
the three-judge bench of this Court in **Jacob Matthew case
includes the requirement that the course adopted by the medical
professional be consistent with “general and approved practice”
and the Court is bound by this decision. [Paras 30, 36 and 41] C
[296-H; 302-D-E; 306-C-D]
Dr Laxman Balkrishna Joshi v. Dr Trimbak Bapu
Godbole AIR 1969 SC 128 : [1969] 1 SCR 206 ;
**Jacob Mathew v. State of Punjab (2005) 6 SCC 1 :
[2005] 2 Suppl. SCR 307 ; Indian Medical Association D
v. V P Shantha (1995) 6 SCC 651 : [1995] 5 Suppl.
SCR 110 ; State of Punjab v. Shiv Ram (2005) 7
SCC 1 : [2005] 2 Suppl. SCR 991 ; Nizam’s Institute of
Medical Sciences v. Prasanth S Dhananka (2009) 6
SCC 1 : [2009] 9 SCR 313 – relied on.
E
V Kishan Rao v. Nikhil Super Speciality Hospital
(2010) 5 SCC 513 : [2010] 5 SCR 1 – referred to.
*Bolam v. Friern Hospital Management Committee
[1957] 1 WLR 582 –Maynard v. West Midlands
Regional Health Authority [1985] 1 All ER 635 ; F
Hucks v. Cole (1968) 118 New LJ 469 ; Bolitho v. City
and Hackney Health Authority (1996) 4 All ER 771 –
referred to.
Medical Negligence, Sweet and Maxwell, Fifth Edition
(2017) by Michael Jones – referred to. G
1.3 In adopting a standard of care, Indian courts must be
conscious of the fact that a large number of hospitals and medical
units in the country, especially in rural areas, do not have access
to latest technology and medical equipment. [Para 42] [306-E]
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284 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Martin F D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 :
[2009] 3 SCR 273 – relied on.
1.4 In the practice of medicine, there could be varying
approaches to treatment. There can be a genuine difference of
opinion. However, while adopting a course of treatment, the
B medical professional must ensure that it is not unreasonable. The
threshold to prove unreasonableness is set with due regard to
the risks associated with medical treatment and the conditions
under which medical professionals function. This is to avoid a
situation where doctors resort to ‘defensive medicine’ to avoid
claims of negligence, often to the detriment of the patient. Hence,
C in a specific case where unreasonableness in professional conduct
has been proven with regard to the circumstances of that case, a
professional cannot escape liability for medical evidence merely
by relying on a body of professional opinion. [Para 43] [306-G-H;
307-A]
D 1.5 In the present case, the record which stares in the face
of the adjudicating authority establishes that between 7.30 am
and 7 pm, the critical parameters of the patient were not evaluated.
The simple expedient of monitoring blood parameters was not
undergone. This was in contravention of WHO guidelines as well
E as the guidelines prescribed by the Directorate of National Vector
Borne Diseases Control Programme. In failing to provide medical
treatment in accordance with medical guidelines, the respondents
failed to satisfy the standard of reasonable care as laid down in
the Bolam case and adopted by Indian Courts. To say that the
patient or her family would have resisted a blood test, is merely
F a conjecture. Since no test was done, such an explanation cannot
be accepted. [Para 44] [307-B-D]
1.6 The NCDRC had before it a well-considered judgment
of the SCDRC based on the evidence on the record. While the
jurisdiction of an adjudicatory authority in a first appeal is co-
G extensive with that of the original authority, the NCDRC has
displaced the findings of fact which have been arrived at by the
SCDRC without any cogent reasoning. There was no basis or
justification to reverse the finding of medical negligence which
was arrived at by the SCDRC. [Para 45 and 47] [307-E, G]
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2. However, there is no basis for recording a finding of A
medical negligence against the Director of the hospital. The
Director of the hospital was not the treating doctor or the referring
doctor. Hence, while the finding of medical negligence against
the hospital would stand confirmed, the second respondent would
not be personally liable. [Para 48] [308-A]
B
3.1 Finding the hospital and its Director guilty of medical
negligence, the SCDRC directed compensation in the amount of
Rs. 6 lakhs together with interest at 9 per cent. While quantifying
the compensation, the SCDRC was in error in holding that since
the son and daughter of the appellant are “highly educated and
working” and had not joined as complainants, the complainant C
himself would be entitled to receive compensation only in the
amount of Rs. 6 lakhs. The complainant has lost his spouse, who
was 56 years of age. Though she was not employed, contribution
made by a non-working spouse to the welfare of the family has an
economic equivalence. Thus, in computing compensation payable D
on the death of a home-maker spouse who is not employed, the
Court must bear in mind that the contribution is significant and
capable of being measured in monetary terms. [Paras 49, 50, 51
and 53] [308-B-D; 309-B]
3.2 The interests of justice would be met, if the amount of E
compensation is enhanced. Accordingly, it is directed that the
appellant shall be entitled to receive an amount of Rs. 15 lakhs
by way of compensation from the first respondent. The
compensation, as awarded, shall carry interest at the rate of 9
per cent per annum from the date of the institution of the complaint
before the SCDRC until payment or realisation. F
[Paras 55 and 56] [309-C, D]
Lata Wadhwa v. State of Bihar (2001) 8 SCC 197 :
[2001] 1 Suppl. SCR 578 ; Malay Kumar Ganguly v.
Sukumar Mukherjee (2009) 3 SCC 663 ; National
Insurance Company Ltd. v Pranay Sethi 2017 (13) G
SCALE 12 – relied on.
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286 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Case Law Reference
[2010] 2 SCR 685 relied on Para 17
[1957] 1 WLR 582 referred to Para 30
[1969] 1 SCR 206 relied on Para 31
B
[2005] 2 Suppl. SCR 307 relied on Para 32
[1995] 5 Suppl. SCR 110 relied on Para 33
[2005] 2 Suppl. SCR 991 relied on Para 34
[2009] 9 SCR 313 relied on Para 34
C
[1985] 1 All ER 635 referred to Para 37
(1968) 118 New LJ 469 referred to Para 38
(1996) 4 All ER 771 referred to Para 39
D [2010] 5 SCR 1 referred to Para 40
[2009] 3 SCR 273 relied on Para 42
[2001] 1 Suppl. SCR 578 relied on Para 52
(2009) 3 SCC 663 relied on Para 53
E
2017 (13) SCALE 12 relied on Para 54
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 227-228 of 2019.
From the Judgment and Order dated 25.02.2016 of the NCDRC
F Circuit Bench, Bhopal in F.A. No.438 of 2015 and Order dated 05.04.2016
in Review Application No.78 of 2016
WITH
Civil Appeal No. 229 of 2019.
G Brijender Chahar, Sr. Adv., Birendra Kumar Mishra, Shashi
Bhushan, Ms. Poonam Atey, Advs. for the Appellant.
Ankur Mittal, U.C. Mittal, Ms.Nidhi Mittal, Advs. for the
Respondents.
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ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 287
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The Judgment of the Court was delivered by A
DR. DHANANJAYA Y. CHANDRACHUD, J.
1. Delay condoned.
2. Leave granted.
3. The National Consumer Disputes Redressal Commission
B
[NCDRC]1 has set aside an order of the MP State Consumer Disputes
Redressal Commission 2 holding the respondents guilty of medical
negligence in the treatment of the spouse of the appellant which eventually
led to her death on 15 November 2009. In consequence, the award of
compensation of Rs. 6,00,000 awarded, together with interest, has been
reversed. C
4. The spouse of the appellant, Madhu Manglik, was about 56
years of age, when on 14 November, 2009, she was diagnosed with
dengue fever. The report of the pathological laboratory, Glaze Pathology,
reported the following state of health:
“RBC- 4.21 Million/cmm D
Hb-12,1 gm/d/ TLC-1900/Cmm
Platelet Count 1.79 lakh/cmm
Dengue Ns 1 Antigen - Positive”
The patient was admitted to Chirayu Health & Medicare hospital
E
at Bhopal at about 7 am on 15 November 2009. She was immediately
admitted to the Intensive Care Unit. Though she was afebrile, she reported
accompanying signs of dengue fever including headache, body ache and
a general sense of restlessness. The patient had a prior medical history
which included catheter ablation and paroxysmal supra ventricular
tachycardia suggestive of cardiac complications. F
5. Upon admission at about 7.30 am, basic investigations were
carried out. The blood report, together with the accompanying clinical
examination indicated the following position:
“Hb 13.4
TLC 3000/Cumm, G
Platelet count 97000/cumim,
PS for MP no malarial parasite seen
Blood urea 21 mg%
Serum bilirubin img%
1
NCDRC H
2
SCDRC
288 SUPREME COURT REPORTS [2019] 3 S.C.R.
A SGPT 521 U/L,
SGOT 105Mg/dl
ELECTROLYTE Sodium 140 meq/L
Potasium 4.0 meq/L Ex R4
Urine test normal Ex R6
10.00 am – Pulse-88/min,
B
Bp. 130/88 mm Hg
Temp. A febrile c/o Pain in abdomen
At 2.00 pm – p-128/min, mildly febrile
BP – 110/70 mm Hg”
C
Since the patient was complaining of abdominal discomfort, an
ultrasonography of the abdomen was carried out.
6. By 6 pm, on the date of admission the patient was sinking, her
blood pressure was non-recordable, extremities were cold and the pulse
was non-palpable. In the meantime, the patient was placed on a regime
D
of administering intravenous fluids. The administration of 2500ml of fluids
was planned over the course of 24 hours. Between 7 am and 6 pm, she
was administered about 1200 ml of fluids. The patient developed
bradycardia and cardiac arrest. Faced with this situation, the treating
doctors administered about 1.5 litres of extra fluids. Fluids and colloids
E were administered for increasing the blood pressure.
7. Since the blood pressure of the patient did not improve, she
was administered ionotropes (dopamine & non adrenaline). At 6.45 pm,
the patient suffered a cardiac arrest. Her cardiac levels were monitored.
At 6.55 pm she was examined by Dr C C Chaubey.
F 8. Belatedly, at 7.15 pm, another blood sample was taken, which
indicated the following results:-
“Hb – 8.1/d/
TLC-7,400/Cumm
Platelet count 19000/cmm Ex R 10
G Total protein- 3.9 gms%
A/G Ratio – 2
SGOT 169 IU/L”
9. At 8 pm, the patient had a cardiac arrest. She was declared
dead at 8.50 pm.
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ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 289
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10. A complaint of medical negligence was instituted before the A
Medical Council of India.
11. The Ethics Committee of the Medical Council of India came
to the conclusion on 20 February 2015 that though the treating doctors
had administered treatment to the patient in accordance with the
established medical guidelines, the treatment was not timely. The Ethics B
Committee, prima facie, found that there was professional misconduct
on the part of both the Director of the Hospital Dr Ajay Goenka
(respondent No. 2) and Dr Abhay Tyagi. The Ethics Committee observed
thus:
“…..After perusing the statements given by both the parties and
C
documents on record in the case, the Ethics Committee discussed
the matter in detailed and noted that the patient admitted in
Chirayu Health & Medicare Pvt. Ltd., Malipura, Bhopal
on the advice of Dr. A. Goenka but he never visited in
hospital to see the patient. The committee further noted
that treatment administered to the deceased in the hospital D
was correct as per the medical guidelines but not given
timely. Although, Dr. Goenka did not went (sic)to hospital to
see the patient as the patient admitted there as per his assurance
and advice, therefore, the Ethics committee prima facie found
that there is a professional misconduct on the part of both the
E
doctors and decided to issue a warning to Dr. A. Goenka and
Dr. Abhay Tyagi with the directions to be more careful in future
while treating such type of patients/cases”
(Emphasis supplied)
12. This recommendation was accepted by the Executive
F
Committee of the Medical Council. The appellate order of the Medical
Council was communicated on 15 July 2015.
13. The appellant instituted a complaint before the SCDRC seeking
an award of compensation in the amount of Rs. 48 lakhs on the ground
that his spouse suffered an untimely death due to the medical negligence
of the treating doctors at the hospital. G
14. By its judgment dated 27 April 2015, the SCDRC came to the
conclusion that a case of medical negligence was established. An amount
of Rs. 6 lakhs was awarded to the appellant by way of compensation,
together with interest at the rate of 9 per cent per annum.
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290 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 15. In appeal, these findings have been reversed by the NCDRC
and in consequence, the claim stands dismissed.
16. Assailing the decision of the NCDRC, learned counsel
appearing on behalf of the appellant submits that:
(i) The patient was admitted to the hospital on 15 November 2009
B with a reported case of dengue, though in a stable condition;
(ii) The hospital and the treating doctors failed to follow the
established protocol in treating a case of dengue;
(iii) The line of treatment was contrary to established guidelines,
C formulated by the World Health Organisation, titled “Dengue
Guidelines for Diagnosis, Treatment, Prevention and Control”;
(iv) Except for the blood sample which was taken at about 7.30
am, no further effort was made to determine the hematocrit
levels (HCT) during the course of the day and it was only
D when the patient suffered a cardiac arrest after 6 pm that
blood investigations were done at about 7.15 pm;
(v) The trajectory of the illness indicated that the platelet levels
which stood at 1,79,000 on 14 November 2009 had recorded a
steep decline and stood at 97,000 on 15 January 2009 when
she was admitted to the hospital;
E
(vi) Admittedly, fluids were administered to the patient as a part
of the treatment protocol;
(vii) The administration of fluids ought to have been accompanied
by regular monitoring of blood levels which would have
F indicated that there was a precipitous decline in the platelet
counts and in the HCT levels;
(viii) Plasma leakage, hemorrhagic fever or dengue shock syndrome
are likely concomitants in the trajectory of such a disease;
(ix) In the absence of regular monitoring, the treating doctors were
G guilty of medical negligence. As a result of their negligence,
the doctors precluded themselves from receiving information
in regard to the status or progression of the disease;
(x) The findings of the SCDRC were reversed by the NCDRC
without any basis or justification;
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(xi) NCDRC has found fault with the patient’s family for the A
administration of aspirin in the day preceding her admission to
the hospital;
(xii) The fact that she was administered aspirin was disclosed to
the treating doctors at the time of admission, which is
satisfactorily established by the medical records of the case; B
(xiii) NCDRC, in the first appeal, has displaced the findings of fact
which have been arrived at by the SCDRC without any basis
in the evidence on record; and
(xiv) On the question of compensation, the appellant had also
instituted a first appeal before the NCDRC since the award of C
compensation was inadequate. On the material which was
placed on the record before the original authority, it is necessary
for this Court to allow the appeal and to suitably enhance the
amount of compensation.
17. On the other hand, learned counsel appearing on behalf of the
D
respondents submitted that:
(i) The patient had been suffering from fever from several days
prior to her admission to the hospital. She was stable at the
time of admission on 15 November 2009;
(ii) The patient did not go into a situation of a dengue shock
E
syndrome or hemorrhagic fever during the course of the day
when she was admitted to the hospital;
(iii) In such a situation, no requirement of regular monitoring of
HCT was warranted in accordance with the guidelines which
have been prescribed by the Directorate of National Vector
Borne Diseases Control Programme (DNVBDCP); F
(iv) The above guidelines, which have been prescribed by the Union
of India under the National Rural Health Mission, would indicate
that it is only in a situation involving dengue hemorrhagic fever
or dengue shock syndrome that further steps would be
necessary; G
(v) The fluids which were administered to the patient did not
require a monitoring of the blood more than twice a day and it
was only in the evening that the HCT levels were required to
be evaluated;
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292 SUPREME COURT REPORTS [2019] 3 S.C.R.
A (vi) The patient had prior cardiac complications for which she had
been on an aspirin regime prior to admission to the hospital.
She was carefully monitored by a team of four doctors at the
hospital;
(vii)The treatment protocol which was followed was consistent
B with the guidelines which have been prescribed both by WHO
as well as by the National Vector Borne Diseases Control
Programme;
(viii) As held in the decision of this Court in Kusum Sharma v
Batra Hospital and Medical Research Centre3, the duty
C of care which is required of a doctor is one involving a
reasonable degree of skill and knowledge; and
(ix) The patient in the present case had prior complications and
the treatment which was administered followed an established
protocol.
D 18. The rival submissions now fall for consideration.
19. We will proceed on the basis of the facts as they stand admitted
on the basis of the record and in the counter affidavit which has been
filed by the respondents.
20. Between 14 January 2009 when the blood report of the patient
E
was obtained from Glaze Pathology Lab and the morning of the following
day on which she was admitted to the hospital, the platelet count had
recorded a precipitous decline from 1,79,000 to 97,000. This undoubtedly,
as the hospital urges in the present case, is a consequence of dengue.
The patient had tested positive in the Dengue Antigen test. At 7.30 am,
F on 15 January 2009, her Hemoglobin was reported to be 13.4. The
patient was thereafter placed on a treatment protocol involving the
administration of intravenous fluids.
21. The condition of the patient was serious enough to require her
admission to the Intensive Care Unit of the hospital. The hospital has
G justified the administration of about 1200 ml of fluid between 7 am and 6
pm when she developed bradycardia and cardiac arrest.
22. The real bone of contention in the present case is not the
decision which was taken by the doctors to place the patient on a regime
H 3
(2010) 3 SCC 480
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 293
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of intravenous fluids which, for the purposes of the present appeals, the A
Court ought to proceed as being on the basis of an established protocol.
23. The essential aspect of the case, which bears out the charge
of medical negligence, is that between 7.30 am when the patient was
admitted to hospital and 6 pm when she developed cardiac arrest, the
course of treatment which has been disclosed in the counter affidavit B
does not indicate any further monitoring of essential parameters
particularly those which could be detected by a laboratory analysis of
blood samples.
24. Since her admission and through the day, the patient was
administered intravenous fluids. The fluids were enhanced at 6 pm by C
1.5 litres after she developed cardiac arrest. The record before the
Court indicates that even thereafter, it was only at 7.15 pm that her
blood levels were monitored. The lab report indicated a hemoglobin level
of 8.1 and platelet count at 19,000. By then, the patient had developed
acute signs of cardiac distress and she eventually died within a couple of
hours thereafter. D
25. The requirement of carefully monitoring a patient in such a
situation is stipulated both by the guidelines of the World Health
Organisation on which the appellant has placed reliance as well as in
those incorporated by the Directorate of the National Vector Borne
Diseases Control Programme in 2008. E
26. The WHO guidelines indicate that Dengue is a ‘systemic and
dynamic disease’ which usually consists of three phases i.e. febrile, critical
and recovery. There had been a precipitous decline in the patient’s platelet
count the day she was admitted to the hospital. The WHO guidelines
inter alia state as follows: F
“2.1.2 Critical phase
……
Progressive leukopenia (3) followed by a rapid decrease in
platelet count usually precedes plasma leakage. At this point G
patients without an increase in capillary permeability will improve,
while those with increased capillary permeability may become
worse as a result of lost plasma volume. The degree of plasma
leakage varies. Pleural effusion and ascites may be clinically
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294 SUPREME COURT REPORTS [2019] 3 S.C.R.
A detectable depending on the degree of plasma leakage and the
volume of fluid therapy. Hence chest x-ray and abdominal
ultrasound can be useful tools for diagnoses. The degree of
increase above the baseline haematocrit often reflects the severity
of plasma leakage.”
B Clause 2.3.2.2 of the WHO guidelines deals with patients who
should be referred for in-hospital management (Group B).
“ Patients may need to be admitted to a secondary health care
centre for close observation, particularly as they approach the
critical phase. These include patients with warning signs, those
C with co-existing conditions that may make dengue or its
management more complicated (such as pregnancy,
infancy, old age, obesity, diabetes mellitus, renal failure,
chronic haemolytic diseases), and those with certain social
circumstances (such as living alone, or living far from a health
facility without reliable means of transport).
D
If the patient has dengue with warning signs, the action plan should
be as follows:
• Obtain a reference haematocrit before fluid therapy. Give only
isotonic solutions such as 0.9% saline, Ringer’s lactate, or
E Hartmann’s solution. Start with 5–7 ml/ kg/hour for 1–2 hours,
then reduce to 3–5 ml/kg/hr for 2–4 hours, and then reduce to
2–3 ml/kg/hr or less according to the clinical response (Textboxes
H, J and K).
• Reassess the clinical status and repeat the haematocrit. If the
F haematocrit remains the same or rises only minimally, continue
with the same rate (2–3 ml/kg/hr) for another 2–4 hours. If the
vital signs are worsening and haematocrit is rising rapidly, increase
the rate to 5–10 ml/kg/hour for 1–2 hours. Reassess the
clinical status, repeat the haematocrit and review fluid infusion
rates accordingly.
G
· Give the minimum intravenous fluid volume required to maintain
good perfusion and urine output of about 0.5 ml/kg/hr.
Intravenous fluids are usually needed for only 24–48 hours.
Reduce intravenous fluids gradually when the rate of plasma
leakage decreases towards the end of the critical phase. This is
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indicated by urine output and/or oral fluid intake that is/are A
adequate, or haematocrit decreasing below the baseline value in
a stable patient.
• Patients with warning signs should be monitored by health
care providers until the period of risk is over. A detailed fluid balance
should be maintained. Parameters that should be monitored include B
vital signs and peripheral perfusion (1–4 hourly until the patient is
out of the critical phase), urine output (4–6 hourly), haematocrit
(before and after fluid replacement, then 6–12 hourly), blood
glucose, and other organ functions (such as renal profile, liver
profile, coagulation profile, as indicated).
C
· Patients should be monitored by health care providers for
temperature pattern, volume of fluid intake and losses, urine
output (volume and frequency), warning signs, haematocrit, and
white blood cell and platelet counts (Textbox L). Other laboratory
tests (such as liver and renal functions tests) can be done,
depending on the clinical picture and the facilities of the hospital D
or health centre.”
According to clause 7.1 of the guidelines of the Directorate of the
National Vector Borne Diseases Control Programme (2008), the basic
management of dengue patients admitted to hospital includes the following:
E
“- a mosquito-free environment in hospital
- close monitoring of patient vitals, input and output, oxygen
saturation, sensorium
- early identification of warning signs and symptoms
- avoid NSAID and intramuscular injections F
- psychological support for patient and family.”
The presence of the following signs and symptoms requires close
monitoring and management (Clause 7.2):
“- respiratory distress G
- oxygen desaturation
- severe abdominal pain
H
296 SUPREME COURT REPORTS [2019] 3 S.C.R.
A - excessive vomiting
- altered sensorium, confusion
- convulsions
- rapid and thready pulse
B - narrowing of pulse pressure less than 20 mmHg
- urine output less than 0.5 ml/kg/h
- laboratory evidence of thrombocytopenia/coagulopathy, rising
Hct, metabolic
C - acidosis, derangement of liver/kidney function tests.”
27. The patient had a prior medical history which included catheter
ablation and paroxysmal supra ventricular tachycardia suggestive of
cardiac complications and thus fell in the group of patients that require
in-hospital management (Group B) under WHO guidelines. The patient
D was evidently suffering from abdominal discomfort and hospital authorities
were required to closely monitor her condition. In failing to do so in a
timely manner, the respondents were unable to meet the standard of
reasonable care expected of medical services.
28. The issue is not whether the patient had already entered a
E situation involving haemorrhagic fever or a dengue shock syndrome when
she was admitted on the morning of 15 November 2009. The real charge
of medical negligence stems from the failure of the hospital to regularly
monitor the blood parameters of the patient during the course of the day.
Had this been done, there can be no manner of doubt that the hospital
would have been alive to a situation that there was a decline progressively
F in the patient’s condition which eventually led to cardiac arrest.
29. This Court has consistently held in its decisions (the decision
in Kusum Sharma(supra) reiterates that principle) that the standard of
care which is expected of a medical professional is the treatment which
is expected of one with a reasonable degree of skill and knowledge. A
G medical practitioner would be liable only where the conduct falls below
the standards of a reasonably competent practitioner in the field.
30. Decisions of this Court elucidate on the standard of care which
is expected of medical practitioners. Medical negligence jurisprudence
in India is characterized by a reliance on the ‘Bolam test’.
H
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 297
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
In Bolam v Friern Hospital Management Committee4, the A
defendant doctor treating a patient suffering from mental illness was
held not guilty of medical negligence by the Queens Bench for failure to
administer muscle-relaxant drugs and using physical restraint in the course
of electro-convulsive therapy. Justice McNair, in his directions to the
jury, laid down the following standard of care:
B
“...I myself would prefer to put it this way, that he is not 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. I do not think there is much difference in sense. It
is just a different way of expressing the same thought. Putting it
the other way round, a man is not negligent, if he is acting in C
accordance with such a practice, merely because there is a body
of opinion who would take a contrary view…”
A careful reading of the Bolam case shows that the standard of
“reasonableness” is implicit in the test. Thus, the court holds:
“…where you get a situation which involves the use of some D
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
E
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. I do not think that I quarrel much
with any of the submissions in law which have been put before
you by counsel. Mr. Fox-Andrews put it in this way, that in
the case of a medical man, negligence means failure to act F
in accordance with the standards of reasonably competent
medical men at the time. That is a perfectly accurate
statement, as long as it is remembered that there may be
one or more perfectly proper standards; and if he conforms
with one of those proper standards, then he is not negligent.
G
Mr. Fox-Andrews also was quite right, in my judgment, in
saying that a mere personal belief that a particular technique
is best is no defence unless that belief is based on
reasonable grounds.”
(Emphasis supplied)
4
[1957] 1 WLR 582 H
298 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Bolam clarified that the standard imposes a duty on medical
professionals to ensure that obsolete methods are not employed:
“…At the same time, that does not mean that a medical man can
obstinately and pig-headedly carry on with some old technique if
it has been proved to be contrary to what is really substantially
B the whole of informed medical opinion.”
31. A three judge Bench of this Court in Dr Laxman Balkrishna
Joshi v Dr Trimbak Bapu Godbole5 stipulated that the standard to be
applied by a medical practitioner must be of a “reasonable degree of
care”:
C “11. The duties which a doctor owes to his patient are clear. A
person who holds himself out ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and
knowledge for the purpose. Such a person when consulted by a
patient owes him certain duties viz. a duty of care in deciding
D whether to undertake the case, a duty of care in deciding what
treatment to give or a duty of care in the administration of that
treatment. A breach of any of those duties gives a right of action
for negligence to the patient. 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
E 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 (cf. Halsbury’s Laws of England
3rd Edn. Vol. 26 p. 17).”
32. In Jacob Mathew v State of Punjab6, a three judge Bench
F of this Court upheld the standard of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill, as
enunciated in Bolam (supra).The Court held that the standard of care
must be in accordance with” general and approved practice”:
“24. The classical statement of law in Bolam has been widely
G accepted as decisive of the standard of care required both of
professional men generally and medical practitioners in particular.
It has been invariably cited with approval before the courts in
India and applied as a touchstone to test the pleas of medical
5
AIR 1969 SC 128
6
H (2005) 6 SCC 1
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 299
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
negligence. In tort, it is enough for the defendant to show that the A
standard of care and the skill attained was that of the ordinary
competent medical practitioner exercising an ordinary degree of
professional skill. 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. Two things are
B
pertinent to be noted. Firstly, 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. Secondly,
when the charge of negligence arises out of failure to use some
particular equipment, the charge would fail if the equipment was
not generally available at that point of time on which it is suggested C
as should have been used.”
33. In Indian Medical Association v V P Shantha7, a three
judge Bench of this Court made the following observations:
“Immunity from suit was enjoyed by certain professions on the
grounds of public interest. The trend is towards narrowing of such D
immunity and it is no longer available to architects in respect of
certificates negligently given and to mutual valuers. Earlier,
barristers were enjoying complete immunity but now even for
them the field is limited to work done in court and to a small
category of pre-trial work which is directly related to what
E
transpires in court…Medical practitioners do not enjoy any
immunity and they can be sued in contract or tort on the
ground that they have failed to exercise reasonable skill
and care.”
(Emphasis supplied)
F
34. A three judge Bench of this Court in State of Punjab v Shiv
Ram8 and in Nizam’s Institute of Medical Sciences v Prasanth S
Dhananka9 affirmed the judgement in Jacob Matthew.
35. A two judge Bench of this Court in Kusum Sharma (supra)
laid down guidelines to govern cases of medical negligence. Justice
Dalveer Bhandari, speaking for the Court, held: G
“89. On scrutiny of the leading cases of medical negligence both
in our country and other countries specially the United Kingdom,
7
(1995) 6 SCC 651
8
(2005) 7 SCC 1
9
(2009) 6 SCC 1 H
300 SUPREME COURT REPORTS [2019] 3 S.C.R.
A some basic principles emerge in dealing with the cases of medical
negligence. While deciding whether the medical professional is
guilty of medical negligence following well-known principles must
be kept in view:
I. Negligence is the breach of a duty exercised by omission to do
B something which a reasonable man, guided by those considerations
which ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man would
not do.
II. Negligence is an essential ingredient of the offence. The
C negligence to be established by the prosecution must be culpable
or gross and not the negligence merely based upon an error of
judgment.
III. The medical professional is expected to bring a reasonable
degree of skill and knowledge and must exercise a reasonable
D 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.
IV. A medical practitioner would be liable only where his
conduct fell below that of the standards of a reasonably
E competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for
genuine difference of opinion and one professional doctor is clearly
not negligent merely because his conclusion differs from that of
other professional doctor.
F VI. The medical professional 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. Just because a professional looking to the
gravity of illness has taken higher element of risk to redeem the
G
patient out of his/her suffering which did not yield the desired
result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he
performs his duties with reasonable skill and competence. Merely
H
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 301
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
because the doctor chooses one course of action in A
preference to the other one available, he would not be liable
if the course of action chosen by him was acceptable to the
medical profession.
VIII. It would not be conducive to the efficiency of the medical
profession if no doctor could administer medicine without a halter B
round his neck.
IX. It is our bounden duty and obligation of the civil society to
ensure that the medical professionals are not unnecessarily
harassed or humiliated so that they can perform their professional
duties without fear and apprehension. C
X. The medical practitioners at times also have to be saved from
such a class of complainants who use criminal process as a tool
for pressurising the medical professionals/hospitals, particularly
private hospitals or clinics for extracting uncalled for compensation.
Such malicious proceedings deserve to be discarded against the D
medical practitioners.
XI. The medical professionals are entitled to get protection so
long as they perform their duties with reasonable skill and
competence and in the interest of the patients. The interest and
welfare of the patients have to be paramount for the medical E
professionals.
90. In our considered view, the aforementioned principles must
be kept in view while deciding the cases of medical negligence.
We should not be understood to have held that doctors can never
be prosecuted for medical negligence. As long as the doctors have F
performed their duties and exercised an ordinary degree of
professional skill and competence, they cannot be held guilty of
medical negligence. It is imperative that the doctors must be able
to perform their professional duties with free mind.”
(Emphasis supplied)
G
He referred to the Bolam test and held thus:
“72. The ratio of Bolam case is that it is enough for the defendant
to show that the standard of care and the skill attained was that of
H
302 SUPREME COURT REPORTS [2019] 3 S.C.R.
A the ordinary competent medical practitioner exercising an ordinary
degree of professional skill. The fact that the respondent
charged with negligence acted in accordance with the
general and approved practice is enough to clear him of
the charge. Two things are pertinent to be noted. Firstly, the
standard of care, when assessing the practice as adopted, is judged
B
in the light of knowledge available at the time (of the incident),
and not at the date of trial. Secondly, when the charge of negligence
arises out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that
point of time on which it is suggested as should have
C been used.”
(Emphasis supplied)
36. The “Bolam test” has been the subject of academic debate
and evaluation in India and other jurisdictions. Among scholars, the
Bolam test has been criticized on the ground that it fails to make the
D distinction between the ordinary skilled doctor and the reasonably
competent doctor.10 The former places emphasis on the standards
adopted by the profession, while the latter denotes that negligence is
concerned with departures from what ought to have been done in the
circumstances and may be measured by reference to the hypothetical
E “reasonable doctor”. The Court must determine what the reasonable
doctor would have done and not the profession.
37. Since the formulation of the Bolam test, English Courts have
formulated a significantly nuanced doctrine pertaining to the standard of
care. In Maynard v West Midlands Regional Health Authority,11
F Lord Scarman held thus:
“A case which is based on an allegation that a fully considered
decision of two consultants in the field of their special skill was
negligent clearly presents certain difficulties of proof. It is not
enough to show that there is a body of competent professional
G
opinion which considers that there was a wrong decision, if there
also exists a body of professional opinion, equally competent, which
supports the decision as reasonable in the circumstances.”
10
Michael Jones, Medical negligence, Sweet and Maxwell, Fifth Edition (2017)
11
1985] 1 All ER 635
H
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 303
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
38. In Hucks v Cole,12 the Court of Appeal found the defendant A
guilty of medical negligence. Sachs LJ held thus:
“Where the evidence shows that a lacuna in professional practice
exists by which risks of grave danger are knowingly taken, then
however small the risk the courts must anxiously examine that
lacuna, particularly if the risk can be easily and inexpensively B
avoided. If the court finds on an analysis of the reasons given for
not taking those precautions that in the light of current professional
knowledge there is no proper basis for the lacuna, and that it is
definitely not reasonable that those risks should have been taken,
its function is to state that fact, and where necessary to state that
it constitutes negligence.” C
39. In Bolitho v City and Hackney Health Authority, 13
the House of Lords held that the course adopted by the medical
practitioner must stand a test to reason:
“...in my view, the court is not bound to hold that a defendant
doctor escapes liability for negligent treatment or diagnosis just D
because he leads evidence from a number of medical experts
who are genuinely of opinion that the defendant’s treatment or
diagnosis accorded with sound medical practice. In the Bolam
case itself, McNair J. stated that the defendant had to have acted
in accordance with the practice accepted as proper by a
“responsible body of medical men.” Later, at p. 588, he referred E
to “a standard of practice recognised as proper by a competent
reasonable body of opinion.” Again, in the passage which I have
cited from Maynard’s case, Lord Scarman refers to a
“respectable” body of professional opinion. The use of these
adjectives—responsible, reasonable and respectable—all F
show that the court has to be satisfied that the exponents
of the body of opinion relied upon can demonstrate that
such opinion has a logical basis. In particular in cases involving,
as they so often do, the weighing of risks against benefits, the
judge before accepting a body of opinion as being responsible,
reasonable or respectable, will need to be satisfied that, in forming G
their views, the experts have directed their minds to the question
of comparative risks and benefits and have reached a defensible
conclusion on the matter.”
(Emphasis supplied)
12
(1968) 118 New LJ 469
13
(1996) 4 All ER 771 H
304 SUPREME COURT REPORTS [2019] 3 S.C.R.
A Granting due deference to the profession of medical practitioners,
Lord Browne-Wilkinson held that it is only in a ‘rare case’ when
professional opinion is not capable of ‘withstanding logical analysis’, that
the judge may hold that it is not reasonable or responsible:
“These decisions demonstrate that in cases of diagnosis and
B treatment there are cases where, despite a body of professional
opinion sanctioning the defendant’s conduct, the defendant can
properly be held liable for negligence (I am not here considering
questions of disclosure of risk). In my judgment that is because, in
some cases, it cannot be demonstrated to the judge’s satisfaction
that the body of opinion relied upon is reasonable or responsible.
C In the vast majority of cases the fact that distinguished experts in
the field are of a particular opinion will demonstrate the
reasonableness of that opinion. In particular, where there are
questions of assessment of the relative risks and benefits of
adopting a particular medical practice, a reasonable view
D necessarily presupposes that the relative risks and benefits have
been weighed by the experts in forming their opinions. But if, in
a rare case, it can be demonstrated that the professional
opinion is not capable of withstanding logical analysis, the
judge is entitled to hold that the body of opinion is not
reasonable or responsible.
E
I emphasise that in my view it will very seldom be right for
a judge to reach the conclusion that views genuinely held
by a competent medical expert are unreasonable. The
assessment of medical risks and benefits is a matter of clinical
judgment which a judge would not normally be able to make
F without expert evidence. As the quotation from Lord Scarman
makes clear, it would be wrong to allow such assessment to
deteriorate into seeking to persuade the judge to prefer one of
two views both of which are capable of being logically supported.
It is only where a judge can be satisfied that the body of expert
G opinion cannot be logically supported at all that such opinion will
not provide the benchmark by reference to which the defendant’s
conduct falls to be assessed.”
(Emphasis supplied)
H
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 305
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
40. Closer home, in V Kishan Rao v Nikhil Super Speciality A
Hospital,14 a two judge Bench of this Court highlighted the shortcomings
of the Bolam test:
“19. Even though Bolam test was accepted by this Court as
providing the standard norms in cases of medical negligence, in
the country of its origin, it is questioned on various grounds. It has B
been found that the inherent danger in Bolam test is that if the
courts defer too readily to expert evidence medical standards
would obviously decline. Michael Jones in his treatise on Medical
Negligence (Sweet and Maxwell), 4th Edn., 2008 criticised the
Bolam test as it opts for the lowest common denominator. The
learned author noted that opinion was gaining ground in England C
that Bolam test should be restricted to those cases where an
adverse result follows a course of treatment which has been
intentional and has been shown to benefit other patients previously.
This should not be extended to certain types of medical accidents
merely on the basis of how common they are. It is felt “to do this D
would set us on the slippery slope of excusing carelessness when
it happens often enough” (see Michael Jones on Medical
Negligence, para 3-039 at p. 246).
24. With the coming into effect of the Human Rights Act, 1998
from 2-10-2000 in England, the State’s obligations under the E
European Convention on Human Rights (ECHR) are justiciable
in the domestic courts of England. Article 2 of the Human Rights
Act, 1998 reads as under:
“Everyone’s right to life shall be protected by law. No one shall
be deprived of his life intentionally save in the execution of a F
sentence of a court following his conviction of a crime for which
this penalty is provided by law.”
25. Even though Bolam test “has not been uprooted” it has come
under some criticism as has been noted in Jackson & Powell on
Professional Negligence (Sweet and Maxwell), 5th Edn., 2002. G
The learned authors have noted (see para 7-047 at p. 200 in
Professional Negligence) that there is an argument to the effect
that Bolam test is inconsistent with the right to life unless the
domestic courts construe that the requirement to take reasonable
14
(2010) 5 SCC 513 H
306 SUPREME COURT REPORTS [2019] 3 S.C.R.
A care is equivalent with the requirement of making adequate
provision for medical care. In the context of such
jurisprudential thinking in England, time has come for this
Court also to reconsider the parameters set down in Bolam
test as a guide to decide cases on medical negligence and
specially in view of Article 21 of our Constitution which
B
encompasses within its guarantee, a right to medical
treatment and medical care.”
(Emphasis supplied)
41. Our law must take into account advances in medical science
C and ensure that a patient-centric approach is adopted. The standard of
care as enunciated in the Bolam case must evolve in consonance with
its subsequent interpretation by English and Indian Courts. Significantly,
the standard adopted by the three-judge bench of this Court in Jacob
Matthew includes the requirement that the course adopted by the medical
professional be consistent with “general and approved practice” and we
D are bound by this decision.
42. In adopting a standard of care, Indian courts must be conscious
of the fact that a large number of hospitals and medical units in our
country, especially in rural areas, do not have access to latest technology
and medical equipment. A two judge bench of this Court in Martin F
E D’Souza v Mohd. Ishfaq15 held thus:
“37. 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
F not generally available at that point of time.”
43. In the practice of medicine, there could be varying approaches
to treatment. There can be a genuine difference of opinion. However,
while adopting a course of treatment, the medical professional must
ensure that it is not unreasonable. The threshold to prove
G unreasonableness is set with due regard to the risks associated with
medical treatment and the conditions under which medical professionals
function. This is to avoid a situation where doctors resort to ‘defensive
medicine’ to avoid claims of negligence, often to the detriment of the
15
(2009) 3 SCC 1
H
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 307
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
patient. Hence, in a specific case where unreasonableness in professional A
conduct has been proven with regard to the circumstances of that case,
a professional cannot escape liability for medical evidence merely by
relying on a body of professional opinion.
44. In the present case, the record which stares in the face of the
adjudicating authority establishes that between 7.30 am and 7 pm, the B
critical parameters of the patient were not evaluated. The simple expedient
of monitoring blood parameters was not undergone. This was in
contravention of WHO guidelines as well as the guidelines prescribed
by the Directorate of National Vector Borne Diseases Control
Programme. It was the finding of the Medical Council of India that
while treatment was administered to the patient according to these C
guidelines, the patient did not receive timely treatment. It had accordingly
administered a warning to the respondents to be more careful in the
future. In failing to provide medical treatment in accordance with medical
guidelines, the respondents failed to satisfy the standard of reasonable
care as laid down in the Bolam case and adopted by Indian Courts. To D
say that the patient or her family would have resisted a blood test, as is
urged by the respondents, is merely a conjecture. Since no test was
done, such an explanation cannot be accepted.
45. The NCDRC had before it a well-considered judgment of the
SCDRC based on the evidence on the record. While the jurisdiction of E
an adjudicatory authority in a first appeal is co-extensive with that of the
original authority, the NCDRC has displaced the findings of fact which
have been arrived at by the SCDRC without any cogent reasoning.
46. The appellate authority has placed a considerable degree of
reliance on the fact that the patient was on aspirin. This circumstance F
was drawn to the attention of the treating doctors at the time of admission.
The NCDRC has merely observed that once she was admitted to the
hospital, the patient was given medicines. This, in our view, is an
insufficient basis to displace the findings of fact and conclusions recorded
by the SCDRC.
G
47. For the above reasons, we are of the view that the judgment
of the NCDRC is unsustainable. There was no basis or justification to
reverse the finding of medical negligence which was arrived at by the
SCDRC.
H
308 SUPREME COURT REPORTS [2019] 3 S.C.R.
A 48. However, in our view, there is no basis for recording a finding
of medical negligence against the Director of the hospital. The Director
of the hospital was not the treating doctor or the referring doctor. Hence,
while the finding of medical negligence against the hospital would stand
confirmed, the second respondent would not be personally liable.
B 49. That leads the Court to the question of damages. Finding the
hospital and its Director guilty of medical negligence, the SCDRC directed
compensation in the amount of Rs. 6 lakhs together with interest at 9 per
cent.
50. While quantifying the compensation, the SCDRC was in error
C in holding that since the son and daughter of the appellant are “highly
educated and working” and had not joined as complainants, the
complainant himself would be entitled to receive compensation only in
the amount of Rs. 6 lakhs.
51. The complainant has lost his spouse, who was 56 years of
D age. Though she was not employed, it is now well settled by a catena of
decisions of this Court that the contribution made by a non-working spouse
to the welfare of the family has an economic equivalent.
52. In Lata Wadhwa v State of Bihar,16 a three judge Bench of
this Court computed damages to be paid to dependants of deceased
E persons as well as burn victims in the aftermath of a fire at the factory
premises. The Court took into consideration the multifarious services
rendered to the home by a home-maker and held the estimate arrived at
Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000
per annum for the age group of 34 to 59 years.
F 53. In Malay Kumar Ganguly v Sukumar Mukherjee,17 Justice
S B Sinha held thus:
“172. Loss of wife to a husband may always be truly compensated
by way of mandatory compensation. How one would do it has
been baffling the court for a long time. For compensating a husband
for loss of his wife, therefore, the courts consider the loss of income
G
to the family. It may not be difficult to do when she had been
earning. Even otherwise a wife’s contribution to the family in terms
of money can always be worked out. Every housewife makes a
contribution to his family. It is capable of being measured on
17
(2009) 3 SCC 663
H
ARUN KUMAR MANGLIK v. CHIRAYU HEALTH AND 309
MEDICARE PRIVATE LTD. [DR. D. Y. CHANDRACHUD, J.]
monetary terms although emotional aspect of it cannot be. It A
depends upon her educational qualification, her own upbringing,
status, husband’s income, etc.”
Thus, in computing compensation payable on the death of a home-
maker spouse who is not employed, the Court must bear in mind that the
contribution is significant and capable of being measured in monetary B
terms.
54. In assessing the amount of compensation, we have been guided
by the principle which has been laid down by the Constitution Benchin
Lata Wadhwa and in National Insurance Company Ltd. v Pranay
Sethi18 with suitable modifications in a case involving medical negligence. C
55. In our view, the interests of justice would be met, if the amount
of compensation is enhanced. We accordingly, direct that the appellant
shall be entitled to receive an amount of Rs. 15 lakhs by way of
compensation from the first respondent.
56. The compensation, as awarded, shall carry interest at the rate D
of 9 per cent per annum from the date of the institution of the complaint
before the SCDRC until payment or realisation. Payment should be
effected within two months.
57. The appeals are allowed in these terms. There shall be no
order as to costs. E
Kalpana K. Tripathy Appeals allowed.
F
G
18
(2017) 13 SCALE 12
H
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