DR. S. K. JHUNJHUNWALAversusMRS. DHANWANTI KAUR & ANR.

868                      [2018]REPORTS
               SUPREME COURT    12 S.C.R. 868              [2018] 12 S.C.R.


A                        DR. S. K. JHUNJHUNWALA
                                        v.
                     MRS. DHANWANTI KAUR & ANR.
                         (Civil Appeal No. 3971 of 2011)
B                             OCTOBER 01, 2018
        [ABHAY MANOHAR SAPRE AND VINEET SARAN, JJ.]
             Consumer Protection Act, 1986 – Medical Negligence – When
      not – Appellant performed laparoscopy and thereafter general
      surgery to remove the Gall Bladder of Respondent No.1 –
C
      Respondent No.1 filed complaint alleging negligence by the
      appellant in performing the surgery and claimed compensation for
      the mental suffering and pain suffered by her throughout after the
      surgery as a result of various ailments suffered by her post surgery
      – Respondent No.1 further alleged that she never gave consent for
D     performing general surgery of her Gall Bladder rather she had
      given consent for performing laparoscopy only – Complaint
      dismissed by State Commission – National Commission awarded Rs.2
      lakhs to be paid by the appellant to Respondent No.1 on account of
      negligence on his part – Propriety of – Held: Appellant is a qualified
      senior doctor with experience in the field and possessed the requisite
E
      knowledge and skill in the subject to perform the surgery of Gall
      Bladder – Initially he proceeded to perform the laparoscopy of the
      Gall Bladder but while so performing he noticed some inflammation
      and swelling on the Gall Bladder and therefore, decided to perform
      the conventional surgery – There is evidence on record that the
F     appellant sought consent of Respondent No.1’s husband to perform
      the substitute operation and only thereafter proceeded to do
      conventional surgery – Further, in terms of Clause 4 of the Consent
      Form, the appellant was entitled to perform the conventional surgery
      as a substitute to the former one having noticed some abnormalities
      at the time of performing laparoscopy – Thus, there was no need to
G
      have another Consent Form to do the conventional surgery – Present
      is a clear case of grant of consent to the appellant to perform the
      substituted operation of Gall Bladder of Respondent No.1–
      Respondent No.1 failed to prove any specific kind of negligence of
      the appellant while performing the operation or/and thereafter –
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                                     868
  DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                       869


Impugned order set aside – Order passed by the State Commission       A
restored.
      Consumer Protection Act, 1986 – Medical Negligence –
Factors to be proved – Discussed.
      Allowing the appeal, the Court
                                                                      B
      HELD: 1.1 The appellant is a professionally trained doctor
and has acquired the post-graduate degree in the subject (FRCS)
from London way back in 1976 and worked there (UK) for seven
years and earned enough experience in the field of surgery. It is
also not in dispute that since 1976/1977, he has been in the field
of surgery in India till the date he performed operation of           C
respondent No.1 on 08.08.1996. These undisputed facts clearly
prove that the appellant is a qualified senior doctor with an
experience in the field and had also possessed the requisite
knowledge and skill in the subject to perform the surgery of Gall
Bladder. Initially he proceeded to perform the laparoscopy surgery    D
of the Gall Bladder of respondent No.1 as advised but while so
performing he noticed some inflammation, adhesion and swelling
on the Gall Bladder and, therefore, decided to perform the
conventional surgery, which he actually did on respondent No.1,
to remove the Gall Bladder. [Paras 25-27] [878-C-E]
                                                                      E
      1.2 Clause 4 of the Consent Form empowers the performing
doctor to perform such additional operation or procedure
including the administration of a blood transfusion or blood plasma
as they or he may consider substitute necessary or proper in the
event of any emergency or if any anticipated condition is
discovered during the course of the operation. In terms of clause     F
4 of the Consent Form, the appellant was entitled to perform the
conventional surgery as a substitute to the former one having
noticed some abnormalities at the time of performing
Laparoscopy. There was no need to have another Consent Form
to do the conventional surgery in the light of authorization          G
contained in clause 4 itself because the substitute operation was
of a same organ for which the former one was advised except
with a difference of another well known method known in medical
subject to get rid of the malady. There is an evidence on record
that the appellant having noticed while performing laparoscopy
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870            SUPREME COURT REPORTS                     [2018] 12 S.C.R.


A     that there was some inflammation, adhesion and swelling on Gall
      Bladder, he came out of operation theater and informed
      respondent No.1’s husband who was sitting outside the operation
      theater about the condition of respondent No.1’s gall bladder and
      sought his consent to perform the substitute operation. It is only
      after the consent given by the husband of respondent No.1, the
B
      appellant proceeded to do conventional surgery. There is no
      reason to disbelieve this fact stated by the appellant in his
      evidence. It is a natural conduct and the behavior of any prudent
      doctor, who is performing the operation to apprise the attending
      persons of what he noticed in the patient and then go ahead
C     accordingly to complete the operation. A clear case of grant of
      consent to the appellant to perform the substituted operation of
      Gall Bladder of respondent No.1 was, therefore, made out to
      enable the appellant to perform the conventional surgery, which
      he actually performed. [Paras 30-34, 36] [879-C-G; 880-A-B]
D           1.3 Respondent No.1 never raised the objection of
      “consent issue” to the appellant or/and respondent no.2-Hospital
      and it was for the first time in the complaint, she raised this issue
      and made a foundation to claim compensation from the appellant.
      Nothing prevented her or her husband to raise the issue of
      consent immediately after performance of the surgery while she
E     was in hospital as an indoor patient and even after discharge that
      being the natural conduct of any patient. It was, however, not
      done. It is not in dispute that respondent no.1 failed to prove any
      specific kind of negligence of the appellant while performing the
      operation or/and thereafter. Indeed, even the National
F     Commission held this issue in favour of the appellant.
      [Paras 39, 40] [880-G, H; 881-E]
            1.4 Respondent No.1 failed to prove with the aid of any
      medical evidence that the stones, which were noticed in the
      second surgery performed after 11 months, were the same stones
G     which the appellant failed to remove from the Gall Bladder. Had
      it been so, the appellant could be held liable for failure on his
      part to remove the stones and allowed them to remain in the Gall
      Bladder for such a long time. There was no medical evidence
      adduced by respondent No.1 to prove this fact. [Paras 41, 42]
      [881-D-E, H ; 882-A]
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  DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                       871


      1.5 Respondent No.1 was under legal obligation to prove a       A
specific kind of negligence on the part of the appellant in
performing the surgery and also was required to prove that any
subsequent ailment which she suffered on her return to home
such as, jaundice, dysentery, fever, loss of weight etc. were
suffered by her only due to improper performance of conventional
                                                                      B
surgery by the appellant and if the surgery had been successful,
she would not have suffered any kind of these ailments. There
has to be a direct nexus with these two factors to sue a doctor for
his negligence. Suffering of ailment by the patient after surgery
is one thing. It may be due to myriad reasons known in medical
jurisprudence. Whereas suffering of any such ailment as a result      C
of improper performance of the surgery and that too with the
degree of negligence on the part of Doctor is another thing. To
prove the case of negligence of a doctor, the medical evidence of
experts in field to prove the latter is required. Simply proving
the former is not sufficient. [Paras 43, 44] [882-B-E]
                                                                      D
      1.6 Respondent No. 1 was not able to prove that the
ailments which she suffered after she returned home from the
Hospital were as a result of faulty surgery performed by the
appellant. The impugned order is set aside and that of the order
passed by the State Commission is restored. [Paras 45, 50]
[882-E-F; 884-C]                                                      E

      Jacob Mathew v. State of Punjab (2005) 6 SCC 1 :
      [2005] 2 Suppl. SCR 307 – relied on.
      Samira Kohli v. Dr. Prabha Manchanda & Anr.
      (2008) 2 SCC 1 : [2008] 1 SCR 719 – referred to.                F
      Bolam v. Friern Hospital Management Committee
      [1957] 1 WLR 582 ; Eckersley v. Binnie (1988) 18
      Con LR 1 ; Hucks v. Cole (1968) 118 New LJ 469 –
      referred to.
                       Case Law Reference                             G
      [2005] 2 Suppl. SCR 307       relied on         Para 21
      [2008] 1 SCR 719               referred to      Para 37


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872            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A           CIVIL APPELLATE JURISDICTION : Civil Appeal No.3971
      of 2011.
            From the Judgment and Order dated 01.09.2009 of the National
      Consumer Dispute Redressal Commission at New Delhi in First Appeal
      No. 93 of 2004.
B           Ateev Kumar Mathur, Gagan Gupta, Advs. for the Appellant.
           Sanjay Kumar Ghosh, Mrs. Rupali Samanta Ghosh, Advs. for the
      Respondents.
            The Judgment of the Court was delivered by
C            ABHAY MANOHAR SAPRE, J. 1. This appeal is directed
      against the final judgment and order dated 01.09.2009 passed by the
      National Consumer Disputes Redressal Commission (hereinafter referred
      to as “the National Commission”), at New Delhi in First Appeal No. 93
      of 2004 whereby the National Commission allowed the appeal filed by
D     respondent No.1 and set aside the order dated 19.01.2004 of the State
      Commission, West Bengal, Kolkata in Complaint Case No.698/O/1997.
            2. In order to appreciate the issue involved in the appeal, it is
      necessary to set out the relevant facts hereinbelow.
             3. The appellant was the opposite party No.1 whereas the
E     respondent No.1 herein was the complainant and respondent No.2 herein
      was the opposite party No.2 in the complaint out of which this appeal
      arises.
             4. The appellant is a doctor by profession and is practicing in
      Calcutta since 1969. He is a qualified Surgeon having expertise, especially
F     in gall bladder surgery. He obtained his MBBS degree from Banaras
      Hindu University in 1968 and thereafter went to England and obtained
      FRCS degree in 1976. He then worked for seven years in various hospitals
      in England as a Surgeon and returned to India in 1978 and settled in
      Calcutta. He was a visiting consultant to several Hospitals out of which
      one was-Life Line Diagnostic Center and Nursing Home (respondent
G     No.2 herein) at Calcutta where he used to perform operations on his
      patients.
            5. Respondent No.1(complainant)-a lady, who, at the relevant
      time, was residing in Calcutta felt pain in her abdomen in June 1996.

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   DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                               873
               [ABHAY MANOHAR SAPRE, J.]

She, therefore, consulted a local doctor but she did not get any relief.       A
Therefore, she consulted Dr. Lakshmi Basu who, on examination, advised
her to get some medical tests done such as X-ray, PA Chest, Ultrasound
of upper abdomen Endoscopy, Blood Tests etc. Respondent No.1, as
advised, carried out these medical tests. On examination of the reports
of respondent No.1, Dr. Basu opined that her Gall Bladder had two
                                                                               B
calculi in its lumen and the same could be cured only by operation. Dr.
Basu accordingly advised respondent No.1 to undergo laparoscopic
surgery from any good Surgeon and suggested the name of the appellant.
       6. Respondent No.1, as advised, consulted Dr. S.K. Jhunjunwala-
the appellant herein who, after her examination and also her medical
test reports, agreed with the advise of Dr. Basu and accordingly advised       C
respondent No.1 for undergoing Surgery of her Gall Bladder. The appellant
also advised respondent No.1 to get herself admitted in respondent No.2’s
Hospital for undergoing Surgery.
      7. On 07.08.1996, respondent No.1 got herself admitted in
respondent No.2’s Hospital as an indoor patient. On 08.08.1996 the             D
appellant performed the laparoscopy and after that open surgery and
removed the Gall Bladder of respondent No.1. Respondent No.1 was in
the hospital for about a week or ten days for post-operative care and
thereafter she was discharged.
       8. In December 1997, respondent No.1 filed a complaint under            E
Section 10 of the Consumer Protection Act, 1986 (for short, “the Act”)
against the appellant (opposite party No.1) and respondent No.2 (opposite
party No.2) claiming compensation for the loss, mental suffering and
pain suffered by her throughout after the surgery on account of negligence
of the appellant in performing the surgery of her Gall Bladder on              F
08.08.1996. Respondent No.1, in substance, complained that firstly, she
had never given her consent for performing general Surgery of her Gall
Bladder rather she had given consent for performing laparoscopy Surgery
only but the appellant performed general surgery of her Gall Bladder
which resulted in putting several stitches and scars on her body, Secondly,
even the surgery performed was not successful inasmuch as respondent           G
No.1 thereafter suffered for several days with various ailments, such as
dysentery, loss of appetite, reduction of weight, jaundice etc., Thirdly, in
June 1997, she was, therefore, required to undergo another Surgery in
Ganga Ram Hospital, Delhi for removal of stones which had slipped in
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874             SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     CBD. It was alleged that all these ailments were incurred due to the
      negligence of the appellant, who did not perform the surgery properly
      and rather performed the surgery carelessly leaving behind for respondent
      No.1 only mental agony, pain, harassment and money loss and hence
      she filed a complaint to claim the reasonable amount of compensation
      under various heads as mentioned above.
B
             9. The appellant filed his reply and denied the allegations made
      by respondent No.1 in her complaint. In substance, the appellant stated
      in his reply that he, after examining respondent No.1, advised her to go
      for surgery of Gall Bladder, which may even include removal of Gall
      Bladder. It was stated that consent of respondent No.1 for performing
C     the laparoscopic cholecystectomy was duly obtained before performing
      the surgery. The appellant stated that after starting laparoscopic surgery,
      he noticed swelling, inflammation and adhesion on her Gall Bladder and,
      therefore, he came out of the Operation Theater and disclosed these
      facts to respondent No.1’s husband and told him that in such a situation
D     it would not be possible to perform laparoscopic surgery and only
      conventional procedure of surgery is the option to remove the malady.
      The husband of respondent No.1 agreed for the option suggested by the
      appellant and the appellant accordingly performed conventional surgery.
      Respondent No.1 was discharged after spending few days in the Hospital
      for post-operative care. The appellant, therefore, denied any kind of
E     negligence or carelessness or inefficiency on his part in performing the
      surgery on respondent No.1 and stated that all kinds of precautions to
      the best of his ability and capacity, which were necessary to perform the
      surgery were taken by him and by the team of doctors that worked with
      him in all such operational cases.
F            10. Parties adduced affidavit evidence in support of their respective
      cases set up in their pleadings. The State Commission, by order dated
      19.01.2004, dismissed the complaint filed by respondent No.1 finding no
      merit therein. Respondent No.1 felt aggrieved and filed appeal before
      the National Commission.
G           11. By impugned order, the National Commission allowed the
      appeal filed by respondent No.1 in part and awarded a total compensation
      of Rs.2 lakhs to be paid by the appellant to respondent No.1 on account
      of negligence on his part in performing the surgery which gives rise to

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   DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                                 875
               [ABHAY MANOHAR SAPRE, J.]

filing of the present appeal by way of special leave in this Court by the        A
appellant-Dr. S.K. Jhunjhnwala(opposite party No.1).
       12. The short question, which arises for consideration in this case,
is whether the National Commission was justified in allowing respondent
No.1’s appeal and was, therefore, justified in holding the appellant (opposite
party No.1) negligent in performing the Surgery of Gall Bladder of               B
respondent No.1 and, in consequence thereof, was justified in awarding
Rs.2 lakhs by way of compensation to respondent No.1.
      13. Heard Mr. Ateev Kumar Mathur, learned counsel for the
appellant and Mrs. Rupali Samanta Ghosh, learned counsel for respondent
No.1.                                                                            C
       14. Having heard the learned counsel for the parties and on perusal
of the record of the case, we are inclined to allow the appeal and while
setting aside the impugned order restore the order of the State
Commission for the following reasons.
      15. Before we proceed to examine the facts of this case, it is             D
apposite to take note of legal principle that governs the controversy
involved in the appeal.
       16. The question as to how and by which principle, the Court
should decide the issue of negligence of a professional doctor and hold
him liable for his medical acts/advise given by him/her to his patient           E
which caused him/her some monetary loss, mental and physical
harassment, injury and suffering on account of doctor’s medical advise/
treatment (oral or operation) is no longer res integra and settled long
back by the series of English decisions as well as the decisions of this
Court.                                                                           F
       17. The classic exposition of law on this subject is first laid down
in a decision of Queens Bench in a leading case of Bolam vs. Friern
Hospital Management Committee [1957]1WLR 582 = (1957) 2 All
ER 118 (QBD).
      18. McNair J., in his opinion, explained the law in the following          G
words:
       “Where you get a situation which involves the use of some
       special skill or competence, then the test as to whether

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876            SUPREME COURT REPORTS                        [2018] 12 S.C.R.


A           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
B
            the ordinary skill of an ordinary competent man exercising
            that particular art”
            19. The aforesaid principle of law was reiterated and explained
      by Bingham L.J. in his speech in Eckersley vs. Binnie (1988) 18 Con
      LR 1 in the following words:
C
            “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
D           profession in the knowledge of new advances, discoveries
            and developments in his field. He should have such an
            awareness as an ordinarily competent practitioner would
            have of the deficiencies in his knowledge and the limitations
            on his skill. He should be alert to the hazards and risks in
E           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
F           average. The law does not require of a professional man
            that he be a paragon combining the qualities of polymath
            and prophet.”
            20. All along and till date, the law laid down in Bolam’s case
      (supra) is consistently followed by all the Courts all over the World
G     including Indian Courts as laying down the correct principle of law on
      the subject. It is known as Bolam Test.
              21. So far as this Court is concerned, a Three Judge Bench in the
      case of Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1] examined
      this issue. Chief Justice R.C. Lahoti, (as he then was) speaking for the
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   DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                               877
               [ABHAY MANOHAR SAPRE, J.]

Bench extensively referred to the law laid down in Bolam’s case (supra)        A
and in Eckersley’s case (supra) and placing reliance on these two
decisions observed in his distinctive style of writing that the classical
statement of law in Bolam’s case (supra) has been widely accepted as
decisive of the standard of care required by both of professional men
generally and medical practitioner in particular and it is invariably cited
                                                                               B
with approval before the Courts in India and applied as a touchstone to
test the pleas of medical negligence.
       22. It was held that a Physician would not assure the patient of
full recovery in every case. A surgeon cannot and does not guarantee
that the result of surgery would invariably be beneficial, much less to the
extent of 100 % for the person operated on. The only assurance which           C
such a professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that branch of
profession which he is practicing and while undertaking the performance
of the task entrusted to him he would be exercising his skill with
reasonable competence. This is what the entire person approaching the          D
professional can expect. Judged by this standard, a professional may be
held liable for negligence on one of two findings: either he was not
possessed of the requisite skill which he professed to have possessed,
or, he did not exercise, with reasonable competence in the given case,
the skill which he did possess.
                                                                               E
         23. It was further observed that the fact that a defendant charged
with negligence acted in accord with the general and approved practice
is enough to clear him of the charge. It was held that the standard of
care, when assessing the practice as adopted, is judged in the light of
knowledge available at the time of the incident and not at the date of
trial. It was held that the standard to be applied for judging whether the     F
person charged has been negligent or not would be that of an ordinary
competent person exercising ordinary skill in that profession. It is not
possible for every professional to possess the highest level of expertise
or skills in that branch which he practices. His Lordship quoted with
approval the subtle observations of Lord Denning made in Hucks vs.             G
Cole (1968) 118 New LJ 469, namely, “a medical practitioner was
not be held liable simply because things went wrong from mischance
or misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another. A medical
practitioner would be held liable only where his conduct fell below
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878             SUPREME COURT REPORTS                            [2018] 12 S.C.R.


A     that of the standards of a reasonably competent practitioner in his
      field.”
              24. In our view, the facts of the case at hand has to be examined
      in the light of the aforesaid principle of law with a view to find out as to
      whether the appellant-a doctor by profession and who treated respondent
B     No.1 and performed surgery on her could be held negligent in performing
      the general surgery of her Gall Bladder on 08.08.1996.
              25. It is not in dispute that the appellant is a professionally trained
      doctor and has acquired the post-graduate degree in the subject (FRCS)
      from London way back in 1976 and worked there (UK) for seven years
C     and earned enough experience in the field of surgery. It is also not in
      dispute that since 1976/1977, he has been in the field of surgery in India
      till the date he performed operation of respondent No.1 on 08.08.1996.
            26. These undisputed facts, in our opinion, clearly prove that the
      appellant is a qualified senior doctor with an experience in the field and
D     had also possessed the requisite knowledge and skill in the subject to
      perform the surgery of Gall Bladder.
             27. It is also not in dispute that initially he proceeded to perform
      the laparoscopy surgery of the Gall Bladder of respondent No.1 as advised
      but while so performing he noticed some inflammation, adhesion and
E     swelling on the Gall Bladder and, therefore, decided to perform the
      conventional surgery, which he actually did on respondent No.1, to remove
      the Gall Bladder.
             28. According to respondent No.1, the appellant could not have
      done so because she had not given her consent to him to perform this
F     surgery on her. In other words, according to respondent No.1, she had
      given her express consent in writing to perform only “laparoscopy
      surgery” but the appellant instead of performing “laparoscopy surgery”
      proceeded to perform conventional surgery and in that process removed
      her Gall Bladder. It is due to this reason, according to respondent No.1,
      a clear case of negligence on the part of the appellant is made out which
G     entitles respondent No.1 to claim compensation in terms of money.
            29. The State Commission did not accept the aforementioned
      submission of respondent No.1 but this submission found favour to the
      National Commission for holding the appellant guilty of negligence in

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   DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                              879
               [ABHAY MANOHAR SAPRE, J.]

performance of his duty in performing the surgery. We do not agree            A
with the reasoning of the National Commission on this issue for more
than one reason mentioned below.
       30. First, clause 4 of the Consent Form dated 07.08.1996 at page
282 of the SLP paper book, which is duly signed by respondent No.1, in
clear terms, empowers the performing doctor to perform such additional        B
operation or procedure including the administration of a blood transfusion
or blood plasma as they or he may consider substitute necessary or
proper in the event of any emergency or if any anticipated condition is
discovered during the course of the operation.
      31. Second, in terms of clause 4 of the Consent Form, the appellant     C
was entitled to perform the conventional surgery as a substitute to the
former one having noticed some abnormalities at the time of performing
Laparoscopy that it would not be possible for the team of doctors
attending respondent No.1 to continue further with laparoscopy of the
Gall Bladder.
                                                                              D
       32. In other words, we are of the view that there was no need to
have another Consent Form to do the conventional surgery in the light of
authorization contained in clause 4 itself because the substitute operation
was of a same organ for which the former one was advised except with
a difference of another well known method known in medical subject to
get rid of the malady.                                                        E

      33. Third, there is an evidence on record and we are inclined to
accept the evidence that the appellant having noticed while performing
laparoscopy that there was some inflammation, adhesion and swelling
on Gall Bladder, he came out of operation theater and informed respondent
No.1’s husband who was sitting outside the operation theater about what       F
the condition of respondent No.1’s gall bladder and sought his consent to
perform the substitute operation. It is only after the consent given by the
husband of respondent No.1, the appellant proceeded to do conventional
surgery.
      34. In our opinion, there is no reason to disbelieve this fact stated   G
by the appellant in his evidence. It is, in our opinion, a natural conduct
and the behavior of any prudent doctor, who is performing the operation
to apprise the attending persons of what he noticed in the patient and
then go ahead accordingly to complete the operation.
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880             SUPREME COURT REPORTS                            [2018] 12 S.C.R.


A           35. It is not the case of respondent No.1 that her husband was
      neither present in the hospital on that day nor he was not sitting outside
      the Operation Theater and nor he ever met the appellant on that day.
             36. In our opinion, a clear case of grant of consent to the appellant
      to perform the substituted operation of Gall Bladder of respondent No.1
B     was, therefore, made out to enable the appellant to perform the
      conventional surgery, which he actually performed.
             37. The National Commission while recording the finding on the
      issue of consent against the appellant relied upon the decision of this
      Court in the case of Samira Kohli vs. Dr. Prabha Manchanda & Anr.
C     (2008) 2 SCC 1. In our view, the said decision itself has made an exception
      to the cases observing in para 49 of the judgment which reads as under:
             “The only exception to this rule is where the additional
             procedure though unauthorised, is necessary in order to
             save the life or preserve the health of the patient and it
D            would be unreasonable to delay such unauthorised
             procedure until patient regains consciousness and takes a
             decision.”
             38. In our opinion, the case of the appellant also falls in the excepted
      category mentioned by this Court because the appellant having noticed
E     the abnormalities in the Gall Bladder while performing laparoscopy
      surgery proceeded to perform the conventional surgery and that too
      after obtaining fresh consent of respondent No.1’s husband. In other
      words, it was not an unauthorized act of the appellant and he could
      legally perform on the basis of original consent (clause 4) of respondent
      No.1 as also on the basis of the further consent given by the respondent
F     No.1’s husband.
             39. That apart, we also find that respondent No.1 never raised
      the objection of “consent issue” to the appellant or/and opposite party
      respondent No.2 - Hospital and it was for the first time in the complaint,
      she raised this issue and made a foundation to claim compensation from
G     the appellant. Nothing prevented her or her husband to raise the issue of
      consent immediately after performance the surgery while she was in
      hospital as an indoor patient and even after discharge that being the
      natural conduct of any patient. It was, however, not done.

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   DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                              881
               [ABHAY MANOHAR SAPRE, J.]

       40. It is not in dispute that respondent No.1 failed to prove any      A
specific kind of negligence of the appellant while performing the operation
or/and thereafter. Indeed, even the National Commission in Para 18
held this issue in favour of the appellant in following words:
      “18. Yet another grievance of the complainant is that she
      was not treated with care during her hospitalization from               B
      07.08.96 to 18.08.96. No specific instances which can amount
      to carelessness or negligence on the part of the surgeon
      or the nursing home have been brought on record and,
      therefore, we are unable to hold that there was any lack of
      care amounting to negligence during her stay in the nursing
      home for which either the surgeon or nursing home can be                C
      made liable.”
       41. Likewise the National Commission further held in favour of
the appellant in para 19 that the stones, which were removed in the
second operation at Ganga Ram Hospital after 11 months (04.06.1997)
were the same which were noticed by the appellant while performing            D
the first surgery on 08.08.1996 and remained inside. In other words,
respondent No.1 failed to prove with the aid of any medical evidence
that the stones, which were noticed in the second surgery performed
after 11 months, were the same stones which the appellant failed to
remove from the Gall Bladder. It is apposite to note the finding of the       E
National Commission in para 19 hereinbelow.
      “………We have already found that from the material placed
      on record that it is not possible to hold with certainty that
      any of the calculi which were removed from the bile duct of
      the complainant at Sir Ganga Ram Hospital was the same                  F
      for which she had undergone Cholecystectomy at the hands
      of the surgeon and, therefore, the only lapse which we can
      find on the part of the surgeon is that he did not care to
      bestow the kind of attention which the problem of
      complainant required when she consulted him after the
      procedure of Cholecystectomy, more particularly during                  G
      April-May 1997……….”
      42. Had it been so, the appellant could be held liable for failure on
his part to remove the stones and allowed them to remain in the Gall

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882            SUPREME COURT REPORTS                          [2018] 12 S.C.R.


A     Bladder for such a long time. There was no medical evidence adduced
      by respondent No.1 to prove this fact.
             43. In our opinion, no medical evidence of any expert was adduced
      by respondent No.1 to prove any specific kind of negligence on the part
      of the appellant in performing the surgery (conventional surgery) of Gall
B     Bladder except raising the issue of “non-giving of express consent”.
      This issue we have already dealt with above and found no merit therein.
      In our view, respondent No.1 was under legal obligation to prove a specific
      kind of negligence on the part of the appellant in performing the surgery
      and also was required to prove that any subsequent ailment which she
      suffered on her return to home such as, jaundice, dysentery, fever, loss
C     of weight etc. were suffered by her only due to improper performance
      of conventional surgery by the appellant and if the surgery had been
      successful, she would not have suffered any kind of these ailments.
             44. In our opinion, there has to be a direct nexus with these two
      factors to sue a doctor for his negligence. Suffering of ailment by the
D     patient after surgery is one thing. It may be due to myriad reasons
      known in medical jurisprudence. Whereas suffering of any such ailment
      as a result of improper performance of the surgery and that too with the
      degree of negligence on the part of Doctor is another thing. To prove
      the case of negligence of a doctor, the medical evidence of experts in
E     field to prove the latter is required. Simply proving the former is not
      sufficient.
            45. In our considered opinion, respondent No. 1 was not able to
      prove that the ailments which she suffered after she returned home
      from the Hospital on 08.08.1996 were as a result of faulty surgery
F     performed by the appellant.
            46. Learned counsel for respondent No.1 (complainant) vehemently
      argued that respondent No.1 suffered immensely due to the surgery
      performed by the appellant and that she was rightly, therefore, awarded
      the compensation by the National Commission.
G           47. Learned counsel for respondent No.1 also placed reliance on
      the Discharge Certificate which, according to her, mentions that
      Laparoscopy surgery was performed on respondent No.1. On this basis,
      learned counsel contended that respondent No.1 had not given her
      consent for performing general surgery.
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   DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR                              883
               [ABHAY MANOHAR SAPRE, J.]

       48. In the light of the detailed discussion made above on the issues   A
arising in the case including the issue of grant of consent, we are unable
to accept the aforesaid submissions of learned counsel for respondent
No.1.
       49. It is apt to remember the words of the then Chief Justice of
India when he said in Jacob Mathew’s case (supra) which reads as              B
under:
       “The subject of negligence in the context of medical
      profession necessarily calls for treatment with a difference.
      There is a marked tendency to look for a human actor to
      blame for an untoward event, a tendency that is closely                 C
      linked with a desire to punish. Things have gone wrong
      and therefore somebody must be found to answer for it. An
      empirical study reveals that background to a mishap is
      frequently far more complex than may generally be
      assumed. It can be demonstrated that actual blame for the
      outcome has to be attributed with great caution. For a                  D
      medical accident or failure, the responsibility may lie with
      the medical practitioner, and equally it may not. The
      inadequacies of the system, the specific circumstances of
      the case, the nature of human psychology itself and sheer
      chance may have combined to produce a result in which                   E
      the doctor’s contribution is either relatively or completely
      blameless. The human body and its working is nothing less
      than a highly complex machine. Coupled with the
      complexities of medical science, the scope for
      misimpressions, misgivings and misplaced allegations
      against eh operator i.e. the doctor, cannot be ruled out.               F
      One may have notions of best or ideal practice which are
      different from the reality of how medical practice is carried
      on or how the doctor functions in real life. The factors of
      pressing need and limited resources cannot be ruled out
      from consideration. Dealing with a case of medical                      G
      negligence needs a deeper understanding of the practical
      side of medicine. The purpose of holding a professional
      liable for his act or omission, if negligent, is to make life
      safer and to eliminate the possibility of recurrence of

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884             SUPREME COURT REPORTS                       [2018] 12 S.C.R.


A           negligence in future. The human body and medical science,
            both are too complex to be easily understood. To hold in
            favour of existence of negligence, associated with the action
            or inaction of a medical professional, requires an in-depth
            understanding of the working of a professional as also the
            nature of the job and of errors committed by chance, which
B
            do not necessarily involve the element of culpability.”
             50. In the light of what we have held above, we cannot concur
      with the reasoning and the conclusion arrived at by the National
      Commission. As a consequence, the appeal succeeds and is accordingly
      allowed. The impugned order is set aside and that of the order passed by
C     the State Commission is restored.


      Divya Pandey                                               Appeal allowed.


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