Supreme Court of India
KUSUM SHARMA & OTHERSversusBATRA HOSPITAL & MEDICAL RESEARCH CENTRE & OTHERS
- Citation
- 2010 INSC 95
- Decided
- 10 February 2010
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
The surgeon performed the operation with reasonable skill and knowledge, and no negligence was established; the National Commission's dismissal was upheld.
Summary
The appellants filed a complaint under Section 21 of the Consumer Protection Act, 1986 alleging deficiency in service and medical negligence after the death of the husband who underwent adrenal surgery at Batra Hospital. The National Consumer Disputes Redressal Commission dismissed the complaint, finding no negligence. On appeal, the Supreme Court examined whether the operating surgeon and the hospital breached the standard of care expected of a reasonably competent medical practitioner. Relying on expert testimony, medical literature, and established jurisprudence, the Court held that the doctor exercised reasonable skill, followed an accepted surgical approach, and that deviations from normal practice do not per se constitute negligence. Consequently, the Court affirmed the Commission’s finding and dismissed the appeal.
Issues considered
- The existence of a deficiency in service and medical negligence under the Consumer Protection Act, 1986.
- Whether the surgeon's conduct fell below the standard of care of a reasonably competent practitioner.
- Whether the choice of surgical approach (anterior vs posterior) amounted to negligence.
- The distinction between civil negligence and criminal negligence in the context of medical practice.
Legislation cited
- Consumer Protection Act, 1986s. 21
- Indian Penal Code, 1860s. 370, s. 88, s. 92
Subjects
medical negligenceconsumer protectiondeficiency in servicestandard of careBolam testcivil liabilitycriminal negligenceIPC sections 88 92 370CPA 1986
Judgment
[2010] 2 S.C.R. 685
KUSUM SHARMA & OTHERS A
v.
BATRA HOSPITAL & MEDICAL RESEARCH CENTRE &
OTHERS
(Civil Appeal No.1385 of 2001)
FEBRUARY 10, 2010
B
[DALVEER BHANDARI AND HARJIT SINGH BEDI! JJ.]
Consumer Protection Act, 1986:
c
Deficiency in Service - Claim for compensation - Death
of patient in hospital - Allegation of medical negligence in
conducting surgery and post surgical care - HELD: The
doctor who performed the operation had reasonable degree
of skill and knowledge - National Commission has rightly 0
held him not guilty of negligence - Merely because the doctor
chooses one course of action in preference to the other, he
would not be liable if the course of action chosen by him was
acceptable to the medical profession - Tort - Negligence -
Difference between 'negligence and 'criminal negligence'.
E
Criminal Law:
Criminal negligence -Medical negligence - Purpose
behind holding a professional liable for his act or omission -
HELD: Is to make life safer and to eliminate the possibility of F
recurrence of sucf? negligence in future - At the same time,
courts have to be extremely careful /to ensure that
professionals are not unnecessarily harassed otherwise they
will not be able to carry out their professional duties without
fear. - It is for the complainant to clearly make out a case of G
negligence before a medical practitioner is proceeded against
criminally - A medical practitioner would be liable only where
his conduct fell below that of standards of a reasonably 1
competent practitioner in his field - A mere deviation from
685 H
686 SUPREME COURT REPORTS [2010) 2 S.C.R.
A normal professional practice is not necessarily evidence of
negligence - Guidelines laid down - Penal Code, 1860 -
ss.88, 92 and 370.
The husband of appellant No. 1 was admitted in
respondent no. 1 hospital on 18.3.1990. A surgical
8
operation for removal of an abdominal tumor, which was
found to be n1alignant, was carried out on 2.4.199~ by
respondent no. 3. As the flow of fluid did not stop, a
second surgery was carried out on 23.5.1990. The patient
was discharged on 23.6.1990 with an advice to follow up
C and for change of the dressing. Some post operative
complications were stated to have arisen and respondent
visited a few other hospitals including the AllMS. On
9.10.1990 the patient was again taken to respondent no.
1-hospital where he died on 11.10.1990 on account of
D 'pyogenic meningitis'. Thereupon the appellants filed a
complaint uls 21 of the . Consumer Protection Act, 1986
before the National· Consumer Disputes Redressal
Commission claiming compensation for alleged
deficiency in service and medical negligence on the part
E of the respondents in the treatment of the deceased. The
National Commission did not find any merit in the
allegations and dismissed tlie complaint. Aggrieved, the
claimants filed" the appeal.
1
F Dismissing the, appeal, the Court
HELD: 1.1. In the instant case, the doctor, respondent
no.3, who performed the operation had reasonable
degree of skill and knowledge. The National Commission,
which considered the medical literature and evidence of
G eminent doctors of AllMS, rightly held respondent no. 3
_not guilty of negligence. [Para 57] [711-C]
Spring Meadows Hospital & Another v. Harjot Ahluwalia
through K. S. Ahluwalia & Another 1998 ( 2 ) SCR 428 =
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 687
RESEARCH CENTRE
(1998) 4 SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr. A
Trimbak Bapu Godbole & Anr. 1969 SCR 206 =AIR 1969
SC 128 ; State of Haryana v. Smt. Santra 2000 ( 3 ) SCR
195 = (2000) 5 SCC 182 ; and Poonam Verma v. Ashwin
Patel & Ors. 1996 ( 2 ) Suppl. SCR 671 = (1996) 4 SCC
332 - referred to. B
R. v. Lawrence, [1981] 1 All ER 974 (HL); R. v. Caldwell
1981(1) All ER 961 (HL); Bbfam v. Friern Hospital
Management Committee (1957) I WLR 582 : (1957) 2 All ER
118; Roe and Wool/eyv. Minister of Health (1954) 2 QB 66; C
Whitehouse v. Jordon & Another (1981) 1 All ER 267 ;Chin
Keow v. Government of Malaysia & Anr. (1967) WLR 813;
Hucks v. Cole & Anr. (1968) 118 New LJ 469; Hunter v.
.
Hanley 1955 SLT 213- referred to .
Black's Law Dictionary; Halsbury's Laws of England D
(Fourth Edition, Vol.30, Para 35), referred to.
1.2. A clear distinction exists between "simple lack
of care" incurring civil liability and "very high degree of
negligence" which is required in criminal cases. As has E
been held by this Court, while negligence is an omission
to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the
conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do;
criminal negligence is the gross and culpable neglect or F
failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public
generally or to an individual in particular, which having
regard to all the circumstances out of which the charge
has arisen, it was the imperative duty of the accused G
person to have adopted. [Para 66 and 68] [713-D-F; 714-
C-E]
Syad Akbar v. State of Kamataka 1980 ( 1 ) SCR 95 =
(1980) 1 SCC 30 ; Bhalchandra alias Bapu & Another v. H
688 SUPREME COURT REPORTS [2010] 2 S.C.R.
A State of Maharashtra 1968 SCR 766 =AIR 1968 SC 1319;
and Jacob Mathew v. State of Punjab & Another 2005 (2)
Suppl. SCR 307 = (2005) 6 SCC 1, referred to.
Andrews v. Director of Public Prosecutions [1937] A.C.
576, referred to.
8
Charlesworth & Percy on Negligence (10th Edn., 2001)
Para 1.13, referred to.
1.3. This Court has held that it is enough for the
·< c defendant to show that the 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 the respondent charged with
negligence acted in accordance with the general and
0 approved practice is enough to clear him of the charge.
Two things are pertinent to be noted: Firstly, the standard
of care, while 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
E 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 been used.
A mere deviation from normal professional practice is not
necessarily evidence of negligence. [Para 75 and 76) [718-
F E-G]
2.1. A doctor faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering! He
does not gain anything by acting with negligence or by
G omitting to do an act. Obviously, therefore, it will be for
the complainant to clearly make out a case of negligence
before a medical practitioner is charged with or
proceeded against criminally.The professional $hould be
held liable for his act or omission, if negligent, is to make
H life safer .and to eliminate the possibil.ity of recurrence of
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 689
RESEARCH CENTRE
negligence in future. But, at the same time courts have A
to be extremely careful to ensure that professionals are
not unnecessarily harassed otherwise they will not be
able to carry out their professional duties without fear.
[Para 78 and 80] [719-E-H; 720-A]
B
2.2. To prosecute a medical professional for
negligence under criminal law it must be shown that the
accused did something or failed to do something which
in the given facts and circumstances no medical
professional in his ordinary senses and prudence would C
have done or failed to do. The hazard taken by the
accused doctor should be of such a nature that the injury
which resulted was most likely imminent. A professional
deserves total protection. The Indian Penal Code, 1860
has taken care to ensure that people who act in good
faith should not be punished. Sections 88, 92 and 370 IPC D
give adequate protection to the professional and
particularly medical professionals. [Para 81 and 91] [720-
B-C; 725-B]
Kurban Hussein Mohammedali Rangawal/a v. State of E
Maharashtra (1965) 2 SCR 622; Indian Medical Association
v. V.P. Shantha & Others 1995 ( 5 ) Suppl. SCR 110 =
(1995) 6 SCC 651; Achutrao Haribhau Khodwa & Others v.
State of Maharashtra & Others 1996 ( 2) SCR 881 = (1996)
2 SCC 634; C.P. Sreekumar (Dr.), MS (Ortho) v. S. F
Ramanujam 2009 (7 ) SCR 272 = (2009) 7 SCC 130,
refered to.
John Oni Akerele v. The King AIR 1943 PC 72; Emperor
v. Omkar Rampratap (1902) 4 Born LR 679, referred to.
G
3. On scrutiny of the leading cases, 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:- H
690 SUPREME COURT REPORTS [2010] 2 S.C.R.
A I. Negligence Js the breach of a duty exercised
by omiss_ion to do something which a
reasonable man, guided by those
considerations which ordinarily regulate the
conduct of human affairs, would do, or doing
B something which a prudent and reasonable
man would not do.
II. Negligence is an essential ingredient of the
offence. The· negligence to be established by
the prosecution must be culpable or gross and
c not the negligence merely based upon an erro~
of judgment.
Ill. The medical professional is expected to bring
a reasonable degree of skill and knowledge
D and must exercise a 'reasonable degree of
care. Neither the very highest nor a very low
degree of care and competence judged in the
light of the particular circumstances of each
case is what the law requires.
E
IV. A medical practitioner would be liable only
where his conduct fell below that of the
standards of a reasonably competent
practitioner in his field.
F 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.
G
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
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL . 691
RESEARCH CENTRE
lesser risk but higher chances of failure. Just A
because a professional looking to the gravity
of illness has taken higher element of risk to
redeem the patient out of his/her suffering
which did not yield the desired result may not
amount to negligence. s
VII. Negligence cannot be attributed to a doctor so
long as he performs his duties with reasonable
skill and competence. Merely because the
doctor chooses one course of action in
preference to the other one available, he would C
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 o
administer medicine without a halter 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 E
or humiliated so that they can perform their
professional duties without fear and
apprehension.
x. The medical practitioners at times also have to F
be saved from such a class of complainants
who use criminal process as a tool for
pressurizing the medical professionals/
hospitals particularly private hospitals or
clinics for extracting uncalled for G
compensation. Such malicious proceedings
deserve to be discarded against the medical
practitioners.
XI. The medical professionals are entitled to get H
692 SUPREME COURT REPORTS (2010) 2 S.C.R.
A 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 professionals. [Para 94] [725-G-
B
H; 726-A-H; 727-A-G]
4.1. It is not that doctors can never be prosecuted for
medical negligence. As long as the doctors have
performed their duti~s and exercised an ordinary degree
of professional skill .and competence, they cannot be
C held guilty of medical negligence. It is imperative that the
doctors must be able to perform their professional duties
with free mind. [Para 95] [728-A-B]
4.2. In the facts and circumstances of the case, the
D appellants have failed to make out any case of medical
negligence against the. respondents. The National
Commission was justified in dismissing the complaint of
the appellants. No interference is called for. [Para 96 and
97] [728-C-D]
E Case Law Reference:
1998 (2) SCR 428 referred to para 47
1969 SCR 206 referred to para 47
F (1957) I WLR 582 referred to para 49
(1957) 2 All ER 118=
(1954) 2 QB 66 referred to para 51
(1981) 1 All ER 267 referred to para 53
G (1967) WLR 813 referred to para 54
2000 (3) SCR 195 referred to para· 55
1996 (2) Suppl. SCR 671 referred to para 56
H [1981] 1 All ER 974 (HL) referred to para 64
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 693
RESEARCH CENTRE
1981(1) All ER 961 (HL) referred to para 64 A
[1937} A.C. 576 referred to para 66
1980 (1) SCR 95 referred to para 67
1968 SCR 766 referred to para 68 B
2005 (2 ) Suppl. SCR 307 referred to para 69
(1968) 118 New LJ 469 referred to para 73
1955 SLT 213 referred to para 74
c
AIR 1943 PC 72 referred to para_82
(1965) 2 SCR 622 referred to para 84
(1902) 4 Born LR 679 referred to para 84
1995 (5) Suppl. SCR 110 referred to para 86 D
1996 (2) SCR 881 referred to para 88
2009 (7) SCR 272 referred to para 92
CIVIL APPELLATE JURISDICTION : Civil Appeal No. E
1385 of 2001.
From the Judgment & Order dated 30.8.2000 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 116 of 1991.
F
Gp. Capt, Karan Singh Bhati, Aishwarya Bhati, Himanshu
Singh and Rekha Giri for the Appellants.
Manvendra Verma, Sudhir Vats, Sanveer Mehalwal (for
Kamakshi S. Mehlwal), Parmanand Gaur (N.P.) Sudhir Kumar G
Gupta, (N.P.), Somnath Mukherjee, (N.P.) and Ankit Gupta (for
Maninder Singh) for the Respondents.
The Judgment of the Court was delivered by
H
694 SUPREME COURT REPORTS {2010] 2 S.C.R.
A DALVEER BHANDARI, J. 1. This appeal is directed
against the judgment and order dated 30th August, 2000
passed by the National Consumer Disputes Redressal
Commission, New Delhi (for short, ·National Commission') in
Original Petition No.116 of 1991.
B
2. The appellants filed a complaint under section 21 of the
Consumer Protection Act, 1986 claiming compensation of
Rs.45 lakhs attributing deficiency in services and medical
negligence in the treatment of the deceased Shri R.K. Sharma
C (who was the husband of appellant no.1, Kusum Sharma and
the father of appellant nos. 2 and 3).
3. Brief facts "Yhich are necessary to dispose of this appeal
are as under:-
D 4. Late Shri R.K. Sharma was a Senior Operations
Manager in the Indian Oil Corporation (Marketing Division). In
June 1989, he developed blood pressure. He was very obese.
He complained of swelling and breathlessness while climbing
stairs. He visited Mool Chand Hospital on 10.12.1989 but no
E diagnosis could be made. The Indian Oil Corporation referred
him to Batra Hospital on 14.3.1990 where he was examined
by Dr. R.K. Mani, respondent no.2 and Dr. S. Arora who
advised him to get admitted for Anarsarca (Swelling).
5. On 18.3.1990, Shri Sharma was admitted in Batra
F Hospital. On 20.3.1990, an ultrasound of abdomen was done
and the next day, i.e., on 21.3.1990, a C.T. scan of abdomen
was done and it was found that there was a smooth surface
mass in the left adrenal measuring 4.5 x 5 cm and that the right
adrenal was normal. Surgery became imperative for removing
G .the left adrenal. The deceased, Shri Sharma and appellant no.1
were informed by Dr. Mani, respondent no.2 that it was well
encapsulated benign tumor of the left adrenal oaf less than 5
cm in size which could be taken out by an operation. It was
decided to carry out the surgical operation for the removal of
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 695
RESEARCH CENTRE [DALVEER BHANDARI, J.]
abdominal tumor. On 2.4.1990, the doctor obtained consent A
from the appellants for the operation of removal of abdominal
tumor. On test, the tumor was found to be malignant. The
treatment for malignancy by way of administering Mitotane could
not be given as it was known to have side effects.
B
6. The surgery was carried out on 2.4.1990 by Dr. Kapil
Kumar, respondent no.3. During the surgery, the body of the
pancreas was damaged which was treated and a drain was
fixed to drain out the fluids. According to the appellants,
considerable pain, inconvenience and anxiety were caused to C
the deceased and the appellants as the flow of fluids did not
stop. After another expert consultation with Dr. T.K. Bose,
respondent no.4 a second surgery was carried out on
23.5.1990 in Batra Hospital by Dr. Bose assisted by Dr. Kapil
Kumar.
D
7. Shri Sharma was fitted with two bags to drain out the
fluids and in due course, wounds were supposed to heal inside
and the fluid was to stop. The deceased was discharged on
23.6.1990 carrying two bags on his body, with an advice to
follow up and for change of the dressing. The deceased next E
visited Batra Hospital only on 31.8.1990 and that too to obtain
a Medical Certificate from Dr. Mani, respondent no.2.
8. On 9.10.1990, Shri Sharma vomited at home and
arrangements for shifting him to the Batra Hospital were made F
and the Hospital's ambulance sent by Dr. Mani. Shri Sharma
died in the hospital on 11.10.1990 on account of · pyogenic
meningitis'.
9. It is pertinent to mention that after the discharge from
Batra Hospital on 23.6.1990, the deceased wrote a letter on G
26.6.1990 to his employer narrating the agony and the pain he
underwent at the hands of the doctors in Batra Hospital.
10. The deceased, on the suggestion of Dr. Bose,
respondent no.4 visited Modi Hospital on 10.7.1990 where Dr. ~f
696 SUPREME COURT REPORTS [2010] 2 S.C.R.
A Bose was a Consulting Surgeon for change of dressing after
17 days. Respondent nos. 2 and 3, namely, Dr. Mani and Dr.
Kapil Kumar visited the residence of the deceased on
14.7.1990 and found him in a bad condition and asked him to
go to AllMS where he was admitted on 22.7.1990 and
B treatment was given for pancreatic fistula and chronic fistula.
He was discharged on 26. 7 .1990 with an advice to follow up
in the O.P.D. The deceased again went to Mool Chand
Hospital on 17 .8.1990 with pancreatic and feacal fistula which
was dressed. The deceased was discharged from Mool Chand
c Hospital on 31.8.1990. The deceased went to Jodhpur on
29.9.1990 and on 30.9.1990 he had to be admitted in the
Mahatma Gandhi Hospital at Jodhpur where he was diagnosed
with having post-operative complications of Adrenoloctomy and
Glutteal abscess. The deceased was discharged from there on
D 3.10.1990 with an advice to get further treatment at AllMS and
when the deceased again went to AllMS on 8.10.1990, Dr.
Kuchupillai, a senior doctor at AllMS wrote on a slip 'to be
,discussed in the Endo-Surgical Conference on 8.10.1990'.
11. The appellants after the death of Shri Sharma filed a
E complaint under section 21 of the Consumer Protection Act,
1986 before the National Commission claiming compensation
attributing deficiency in services and medical negligence in the
treatment of the deceased Shri Sharma.
F 12. The appellants attributed death of Shri Sharma
because of negligence of the doctors and the hospital. The
appellants alleged that the informed consent was completely
lacking in this case. The appellants also alleged that the only
tests done before operation to establish the nature of tumor
were ultrasound and C.T. scan which clearly showed a well
G capsulated tumor of the size 4.5 x 5 cm. in the left adrenal and
the right adrenal was normal.
13. The appellants alleged that the deceased Shri Sharma
had no access whatsoever to any of the hospitals records
H before filing the complaint.
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 697
RESEARCH CENTRE [DALVEER BHANDARI, J.]
14. The appellants also alleged that there was nothing on A
record to conclusively establish malignancy of the tumor before
the operation was undertaken. The appellants also had the
grievance that they were not told about the possible
complications of the operation. They were told that it was a
small and specific surgery, whereas, the operation lasted for s
six hours. The appellants alleged that pancreatic abscess was
evident as a result of pancreatic injury during surgery. The
appellants further alleged that there was nothing on record to
show that Dr. Kapil Kumar, respondent no. 3 possessed any
kind of experience and skill required to undertake such a c
complicated operation.
15. The appellants also had the grievance that they were
not informed in time of the damage caused to the body of
pancreas and the removal of the spleen.
D
16. According to the appellants, the ·anterior' approach
adopted at the time of first surgery was not the correct
approach. Surgery should have been done by adopting
'posterior' approach for removal of left adrenal tumor. Dr. Kapil
Kumar, respondent no. 3 after the first operation on 2.4.1990 E
told the appellants that the operation was successful and the
tumor was completely removed which was in one piece, well
defined and no spreading was there. After the surgery, blood
was coming out in a tube which was inserted on the left side
of the abdomen. On specific query made by thedeceased and F
appellant no.1, respondent nos. 2 and 3 told them that the
pancreas was perfectly normal but during operation on
2.4.1990, it was slightly damaged but repaired instantly, hence
there was no cause of any anxiety. When the fact of damage
to pancreas came to the notice of the deceased, he asked for G
the details which were not given. The appellants alleged that
the tumor taken out from the body was not malignant.
17. The complaint of the appellants was thoroughly
examined and dealt with by the National Commission. The
National Commission had decided the entire case of the H
698 SUPREME COURT REPORTS [2010] 2 S.C.R.
A appellants in the light of the law which has been crystallized by
a number of cases decided by this Court. Some of them have
been extensively dealt with by the Commission.
18. The allegations in the complaint were strongly rebutted
by Dr. Kapil Kumar, respondent no. 3. Dr. Kapil stated in his
8
affidavit that the anterior approach was preferred over the
posterior approach in the suspected case of cancer, which was
the case of Shri Sharma. The former approach enables the
surgeon to look at liver, the aortae area, the general spread
and the opposite adrenal gland. The risk involved was explained
C to the patient and the appellants and they had agreed to the
surgery after due consultation with the family doctor.
19. With the help of medical texts in support of adopting
·anterior' approach, respondent no. 3 mentioned as under:
D
"(i) "The ·anterior' approach for adrenalectomy is
mandatory whenever optimum exposure is required or
when exploration of the entire abdomen is necessary.
Therefore, this approach is used in patients with adrenal
tumours >4 cm in diameter, or in patients with possibly
E
malignant tumours of any size, such as pheochromocytoma
or adrenocortical carcinoma .....
Resection of the left ad!enal gland requires
mobilization of the spleen and left colon. The lateral
F peritoneal attachments of the left colon are freed, initially.
Then the spleen is scooped out from the left upper guardant
medially and the avascular attachments between the
spleen and diaphragm are divided. The spleen, stomach,
pancreatic tail and left colon are retracted medially en bloc
G to the superior mesenteric vessels. The left adrenal gland
is exposed splendidly in this manner". - Peritoneum,
Retroperitoneum and Mesentery- Section IV.
(ii) "Adrenal operations. Surgery should be initial
treatment for all patients with Cushing syndrome secondary
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 699
RESEARCH CENTRE [DALVEER BHANDARI, J.]
to adrenal adenoma or carcinoma. Preoperative radiologic A
lateralization of the tumor allows resection via a unilateral
flank incision. Adrenalectomy is curative. Postoperative
steroid replacement therapy is necessary until the
suppressed gland recovers (3-6 months).
B
Adrenal carcinoma should be approached via a
midline incision to allow radical resection,· since surgery
is only hope for cure". - Principles of Surgery, 18th Edition
Page 560.
(iii) "Adrenocortical malignancies are rare, often at C
advanced stage when first discovered and should be
approached using an anterior approach to allow adequate
exposure of the tumor and surrounding soft tissue and
organs". - Technical Aspects of Adrenalectomy- By Clive
S. Grant and Jon A. Van Heerden - Chapter Thirty Five." D
20. The medical texts quoted above speak of both the
approaches for adrenaloctomy. Nowhere the appellant no.1 has
been able to support her contention that posterior approach
was the only possible and proper approach and respondent no.
E
3 was negligent in adopting the anterior approach.
21. Apart from the medical literature, Dr. N. K. Shukla,
Additional Professor at AllMS and a well-know surgeon stated
in unequivocal terms in response to a specific question from
the appellant no.1 that for malignant tumors, by and large, we F
prefer anterior approach.
22. Dr. Nandi, Professor and Head of Department of
Gastro-lntestinal Surgery at AllMS also supported ·anterior'
approach and confirmed and reconfirmed adoption of ·anterior' G
approach in view of inherent advantages of the approach.
23. In view of the medical literature and the evidence of
eminent doctors of AllMS, the National Commission did not find
any merit in the allegations levelled.
H
700 SUPREME COURT REPORTS [201 O] 2 S.C.R.
A 24. According to the appellants, Dr. Bose, respondent no.
4, who performed the second surgery on 23.5.1990 did not
follow the advice of Dr. Nandi, Professor and the Head of
Department of Gastro-lntestinal Surgery at AllMS. Dr. Nandi had
advised placing of feeding tube at a designated place, but this
B was not done.
25. Dr. Bose, Respondent no. 4 stated in his affidavit that
there are three well known alternative methods of food supply
of nutrition minimizing any leakage of enzymes from the
pancreas. Any of the alternative methods could be adopted only
C after opening the stomach and this is precisely what
respondent no. 4 did, i.e. cleared the area of abscess, dead
and other infective tissues and inserted a second tube for
drainage of fluid in the affected area and in the pancreatic duct.
Respondent no. 4 also inserted a second tube connecting the
D exterior of the abdomen with the affected part of the _.pancreas
and the abdomen for drainage and clearance in support of the
first tube inserted for drainage. According to respondent no. 4,
this was the best course which could be done keeping in view
the inside status of the stomach of the deceased and that was
E done.
26. The National Commission did not find any merit in this
complaint of the appellants.
27. Another complaint made by the appellants was with
F regard to 'Gluteal abscess' which was attributed to 'pyogenic
meningitis' resulting in the death of Shri Sharma which was first
observed in the Medical College Hospital at Jodhpur, where
the deceased had gone in connection with performing certain
rites in connection with the death of his mother-in-law. The
G Gluteal abscess was drained by a simple incision. He was
discharged from there on 3. 10. 1990 with an advice to go to
AllMS, New Delhi and meet Dr. Kuchupillai, the
Endoconologist. According to the doctor, there was not even
a whisper of any incision or draining of gluteal abscess. The
·H Essentiality Certificate makes it clear that no incision was
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 701
RESEARCH CENTRE [DALVEER BHANDARI, J.}
made to drain out gluteal abscess. A
28. The appellants aggrieved by the judgment and order
of the National Commission filed the present appeal before this
court.
29. This court issued notice and in pursuance to the notice B
issued by this court, a counter affidavit on behalf of respondent
no.1 has been filed by Dr. Ranbir Kumar Gupta. It is mentioned
in the affidavit that although the respondents fully sympathized
with the appellants' unfortunate loss, the respondents are
constrained to submit that the appellants had presented a c
malicious, fabricated and distorted account to create a false
impression that the respondents were guilty ofnegligence in
treating late Shri R.K. Sharma.
30. The respondents also submitted that the appellants D
have ignored the fact that the medicine is not an exact science
involving precision and every surgical operation involves
uncalculated risks and merely because a complication had
ensued, it does not mean that the hospital or the doctor was
guilty of negligence. A medical practitioner is not expected to
E
achieve success in every case that he treats. The duty of the
Doctor like that of other professional men is to exercise
· reasonable skill and care. The test is the standard of the
ordinary skilled man. It is further submitted in the counter
affidavit that the hospital and the doctors attended late Shri
F
Sharma with utmost care, caution and skill and he was treated
with total devotion and dedication. Shri Sharma'sdeath was
attributable to the serious disease with which hewas suffering
from. It is also mentioned that the conduct of the deceased
himself was negligent when he was dischargedon 23.6.1990.
The doctors specifically advised him "Regular Medical Follow G
Up" which the deceased failed to attend. In fact, subsequently,
it was respondent no.4 who called upon the deceased and
persuaded him to visit the Modi Hospital for a change of
dressing. The Fitness Certificate issued to the deceased also
bore the endorsement "he would need prolonged and regu\ar H r•
702 SUPREME COURT REPORTS [2010] 2 S.C.R.
A follow up". However, the deceased did not make any effort and
was totally negligent.
31. According to-the affidavit, the deceased was admitted
on 18.3.1990 in Batra Hospital. Dr. R.K. Mani recommended
B certain investigations such as abdominal Utrasound, Echo-
cardiogram Blood Tests etc. On 20.3.1990, Dr. Mani ordered
a- C.T. Scan of the abdomen for a suspected lump in the
abdomen. The C.T. abdomen revealed a large left adrenal
mass. Accordingly, the following note was recorded by Dr. R.K.
Mani in the case sheet on 21.3.1990:-
C
"CT abdomen reveals a large left adrenal mass. Evidently
there is a secreting adrenal tumour. Patient needs full work
up re hormonal status and CT Head Scan." The same day
Dr. R.K. Mani referred the case to Dr. C.M. Batra,
D Endocrinologist and sought Dr. Batra's opinion on the
diagnosis made by him that Anasrarca was attributable to
the Adrenal tumour. Dr. Mani also referred Shri R.K.
Sharma to a Dermatologist. That after reviewing the case
Dr. C.M. Batra agreed with Dr. Mani that Anarsarca was
E due to the Adrenal Tumour. Dr. Batra was also of the
opinion that the A~renal Tumour could be due to either
Adrenal or Adrenal Carcinorµa (i.e. cancer). Dr. Batra
recommended a C.T. Thorax Bone and Skeletol survey.
The Dermatologist Dr. Kandhari reported that Shri R. K.
F Sharma had a fungal infection. After the reports of all the
tests and the report of the hormonal assays had been
received, respondent no.2 came to a confirmed diagnosis
that Shri R.K. Sharma had a secreting adrenal tumour. The
patient was informed that surgery for removal of an adrenal
G tumour was planned. Appellant no.1 was also informed that
the tumour was suspected to be malignant. Mrs. Kusum
Sharma told respondent no.2 that one of her relations was
a doctor working in Jodhpur Medical College and that she
would like to consult him. The said relation of Smt. Kusum
H Sharma came down to Delhi, examined Shri R.K. Sharma
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 703
RESEARCH CENTRE [DALVEER BHANDARI, J.]
and went through all the reports. Thereafter, Smt. Kusum A
Sharma gave consent for the surgery. Dr. Kapil Kumar, who
specializes in surgical oncology, i.e., cancer surgery was
asked to operate upon Shri R.K. Sharma. The risk involved
in the operation was explained to the petitioner, her
husband (now deceased) and their relative and they B
agreed after due consultation with their family doctor."
32. Shri Sharma was operated on 2.4.1990 by Dr. Kapil
Kumar, respondent no.3 and the adrenal tumour was removed.
During surgery it became necessary to remove the spleen of C
Shri R.K. Sharma. The operation was successful. However, the
tail of the pancreas was traumatized during retraction as Shri
R.K. Sharma was extremely obese. On examination, the injury
to the pancreas was found to be superficial and non-ductal. The
damage to the pancreas was repaired immediately with
interrupted non-absorbable sutures and drains were placed. D
The injury to the pancreas was known during surgery and the
same was repaired immediately. It was clearly recorded in the
operation transcript that the body of the pa.ncreas was
damaged on its posterior surface. The said fact was recorded
in the discharge summary. E
33. It is submitted that after the surgery Shri R.K. Sharma
was· subjected to ultrasound imaging and sonogram. On
26.4.1990 respondent no.2 ordered a CT Scan as he
suspected the existence of a pancreatic abscess. The CT Scan F
report was suggestive of paripancreatic inflammation and
pancreatic abscess. Thus the CT Scan merely confirmed the
suspicion of appellant no.1, the wife of Shri R.K. Sharma who
was well aware of the injury to the pancreas and the possibility
of there being a pancreatic abscess and she had long G
discussion with respondent nos.2 and 3 regarding the
prognosis. It is denied that the patient and the appellants were
assured that fluid discharge would stop within 2 or 3 days time
or that it was normal complication after any surgery.
34. It is submitted that the tumour mass was sent for biopsy H
704 SUPREME COURT REPORTS [2010] 2 S.C.R.
A the same day i.e. 2.4.1990. The histopathology report was
received the next day and it recorded a positive finding of the
tumour being malignant. Since cases of adrenal cancer have
a very poor prognosis, six slides were sent to Sir Ganga Ram
Hospital for confirmation. The histopathology report from Sir
B Ganga Ram Hospital also indicated cancer of the adrenal gland.
35. It is admitted that due to the insistence of the patient
and the appellants to seek expert advice of the All India Institute
of M~dical Science the patient was referred to Sir Ganga Ram
Hospital for E.R.C.P. Test. After the CT Scan report dated
0
26.4.1990 confirmed the existence of pancreatic abscess, on
28.4.1990, respondent nos.2 and 3 sought the advice of Dr.
T.K. Bose, respondent no.4. An E.R.C.P. test and Sonogram
were recommended by respondent no.4 and it was again
respondent no.4 who suggested that the opinion of Prof. Nandi
D of All India Institute of Medical Sciences be sought. E.R.C.P.
and Sonogram are sophisticated tests and the patient can
hardly be expected to be aware of such procedures. It is
submitted that the E.R.C.P. test confirmed the initial diagnosis
made by respondent nos. 2 and 3 that there being a leakage
E from the pancreatic duct and showed the exact site of leakage.
Determination of exact site of leakage is one of the principal
function$ of the E.R.C.P. test.
36. In the counter-affidavit it is specifically denied that the
F deceased was dissatisfied with the treatment. In the affidavit,
it is mentioned that Dr. T.K. Bose and Dr. Kapil Kumar adopted
the procedure, which in their opinion was in the best interest
of the patient, Shri Sharma.
37. During the second operatiori on 23.5.1990 it was found
G that there was matting together of proximal jejunal loops
(intestinal loops) in the left infra-colic compartment subjacent
to root of transverse mescolon and it was technically hazardous
to do feeding jejunostomy. That is why a deviation was made.
Dr. T. K. Bose and Dr. Kapil Kumar were not obliged to follow
H every detail of Pr. Nandi's recommendation as appropriate
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 705
RESEARCH CENTRE [DALVEER BHANDARI, J.]
decisions were to be made in accordance with the findings at A
surgery. It would be pertinent to point out that Dr. Nandi's note
was at best a theoretical analysis whereas Dr. Bose was the
man on the spot. Matting of jejunal loops was not known to Dr.
Nandi and came to be known only on the operation table.
B
38. It is submitted that the bleeding (hematemsia) was due
to stress ulceration and not due to damage to the stomach by
a Nasodudoenal tube. Such bleeding is quite common after
major surgery. It is denied that fundus of the stomach was
damaged during surgery or during placement of the
Nasodudoenal tube as alleged by the appellants. In fact, the site C
of surgery was nowhere near the fundus of the stomach. It is
denied that any procedure adopted by Dr. Bose and Dr. Kapil
Kumar in surgery endangered the life of the patient. Shri R.K.
Sharma was discharged as his surgical wounds hadhealed and
his overall condition was satisfactory. D
39. It is submitted that after his discharge from Batra
Hospital on 23.6.1990, Shri R.K. Sharma did not maintain any
contact with the answering respondents till 9.10.1990 barring
one visit to respondent no.2 on 31.8.1990 for the purpose of E
obtaining fitness certificate. The answering respondent cannot
be held responsible for any mishap, which might have taken
place when the deceased Shri R. K. Sharma was being treated
elsewhere.
40. It is further submitted that no request was received by f
respondent no.1 from AllMS for supply of the case sheets or
the tumour mass. Had such a request been received the case
sheets would have been sent to AllMS forthwith. The tumour
mass would also have been sent subject to availability, as
generally the mass is not preserved beyond a period of 4 G
weeks. As a standard practice, case sheets are never given
to patients as they contain sensitive information which can
affect their psyche. ·
41. It is submitted that no malafides can be attributed to H
706 SUPREME COURT REPORTS [2010] 2 S.C.R.
A the answering respondents for declining the request of Shri R.K.
Sharma for handing over the entire mass of tumour. Had the
mass been available, it would have definitely been given. As
per standard practice, specimens are discarded after one
month and, therefore, the tumour mass was not available and
B as such could not be given to Shri R.K. Sharma. All over the
world the standard practice is to preserve slides and to use
them for review.
42. The Histopathology report from Moel Chand Hospital
C recorded the presence of Mitosis, which are indicative of
malignancy. The Histopathology reports from Batra Hospital and
Sir Ganga Ram Hospital clearly indicated the presence of
malignancy, whereas the report from Moel Chand Hospital did
not specifically indicate whether the tumour was malignant or
benign. Rather it was stated in the report that a follow up was
D required.
43. It is submitted that pyrogenic meningitis was most
probably the consequence of gluteal abscess for which the
patient had not received any proper treatment in the proceeding
E weeks. It was only when the patient was in a critical condition
that he was brought to Batra Hospital. However, at that stage
the disease of the patient was too far advanced.
44. It is denied that pyrogenic Meningitis "is swelling in the
brain due to the spoiled surgery and the unhealed wounds
F inside caused by the repeated insertions of tubes introducing
infections." It is denied that surgery was spoiled at Batra
Hospital. Further when the deceased Shri R.K. Sharma was
discharged, all his wounds had healed. Pyrogenic Meningitis
is not swelling of the brain but inflammation of the covering of
G the brain. It could not have been the consequence of the surgery
or the pancreatic abscess.
45. In the discharge summary prepared initially it was
recorded specifically that the adrenal mass was malignant and
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 707
RESEARCH CENTRE [DALVEER BHANDARI, J.]
that the patient should be started on Mitotane at the earliest after A
the period of recovery from the operation. However, the
appellants had requested respondent no.2 to delete all
references about cancer from the discharge slip as her
husband was likely to read the same. She apprehended that
in such an event her husband would become mentally disturbed. 8
Having regard to the apprehension expressed by the appellant
no.1, Smt. Kusum Sharma, respondent no.2 prepared a fresh
discharge summary which did not contain any reference to
cancer. The diagnosis of cancer was not an afterthought. The
diagnosis of cancer was a considered one after two c
histopathological reports were received. It is however denied
that the patient was told that he was suffering from cancer.
46. It is also denied that Dr. Kapil Kumar lacks experience.
On the contrary, Dr. Kapil Kumar has impressive credentials D
and he had undertaken training in the well known Tata Cancer
Hospital at Mumbai and he had adequate experience in
handling such operations.
47. The learned counsel appearing for the appellants
placed reliance on Spring Meadows Hospital & Another v. E
Harjot Ahluwalia through K.S. Ahluwalia & Another (1998) 4
SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr. Trimbak
Bapu Godbole & Anr. AIR 1969 SC 128. According to
respondent no.1, these cases have no application to the present
case. The facts in these cases are entirely different and the law F
of negligence has to be applied according to the facts of the
case.
48. According to Halsbury's Laws of England Ed.4 Vol.26
pages 17-18, the definition of Negligence is as under:-
G
"22. Negligence : Duties owed to patient. A person who
holds himself out as ready to give medical (a) advice or
treatment impliedly undertakes that he is possessed of skill
and knowledge for the purpose. Such a person, whether
he is a registered medical practitioner or not, who is H
708 SUPREME COURT REPORTS [2010] 2 S.C.R.
A consulted by a patient, owes him certain duties, namely,
a duty of care in deciding whether to undertake the case:
a duty of care in deciding what treatment to give; and a
duty of care in his administration of that treatment (b) A
breach of any of these duties will support an action for
B negligence by the patient (c)."
49. In a celebrated and oftenly cited judgment in Bo/am v.
Friem Hospital Management Committee (1957) I WLR 582 :
(1957) 2 All ER 118 (Queen's Bench Division - Lord Justice
McNair observed.
c
"(i) a doctor is not negligent, if he is acting in accordance
with a practice accepted as proper by a reasonable body
of medical men skilled in that particular art, merely
because there is a body of such opinion that takes a
D contrary view.
The direction that, where there are two different schools
of medical practice, both having recognition among
practitioners, it is not negligent for a · practitioner to follow
one in preference to the other accords also with American
E
law; See 70 Corpus Juris Secundum (1951) 952, 953,
para 44. Moreover, it seems that by American law a failure
to warn the patient of dangers of treatment is not, of itself,
negligence ibid. 971, para 48).
F Lord Justice McNair also observed : Before I turn that, I
must explain what in law we mean by "negligence". In the
ordinary case which does not involve any special skill,
negligence in law means this : some failure to do some
act which a reasonable man in the circumstances would
G do, or doing some act which a reasonable man in the
circumstances would not do; and if that failure or doing of
that act results in injury, then there is a cause of action: How
do you test whether this act or failure is negligent? In an
ordinary case, it is generally said, that you judge that by
H the action of the man in the street. He is the ordinary man.
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 709
RESEARCH CENTRE [DALVEER BHANDARI, J.]
In one case it has been said that you judge it by the A
conduct of the man on the top of a Clapham omnibus. He
is the ordinary man. But where you get a situation which
involves the use of some special skill or competence, then
the test whether there has been negligence or not is not
the test of the man on the top of a Claphm omnibus, B
becausehe has not got this man exercising and professing
to have that special skill. A man need not possess the
highest expert skill at the risk of being found negligent. It
is well-established law that it is sufficient if her exercises
the ordinary skill of an ordinary competent man exercising c
that particular art."
50. Medical science has conferred great benefits on
mankind, but these benefits are attended by considerable risks.
Every surgical operation is attended by risks. We cannot take
the benefits without taking risks. Every advancement in D
technique is also attended by risks.
51. In Roe and Woolley v. Minister of Health (1954) 2 QB
66, Lord Justice Denning said : ·It is so easy to be wise after
the event and to condemn as negligence that which was only a E
misadventure. We ought to be on our guard against it, especially
in cases against hospitals and doctors. Medical science has
conferred great benefits on mankind but these benefits are
attended by unavoidable risks. Every surgical operation is
attended by risks. We cannot take the benefits without taking F
the risks. Every advance in technique is also attended by risks.
Doctors, like the rest of us, have to learn by experience; and
experience often teaches in a hard way."
52. It was also observed in the same case that "We must
not look at the 1947 accident with 1954 spectacles:". "But we G
should be doing a disservice to the community at large if we
were to impose liability on hospitals and doctors for everything
that happens to go wrong. Doctors would be led to think more
of their own safety than of the good of their patients. Initiative
would be stifled and confidence shaken. A proper sense of H
710 SUPREME COURT REPORTS [2010) 2 S.C.R.
A proportion requires us to have regard to the conditions in which
hospitals and doctors have to work. We must insist on due care
for the patient at every point, but we must not condemn as
negligence that which is only a misadventure.
53. In Whitehouse v. Jordon & Another (1981) 1 All ER
8
267 House of Lords per Lord Edmund-Davies, Lord Fraser
and Lord Russell:
"The test whether a surgeon has been negligent is whether
he has failed to measure up in any respect, whether in
C clinical judgment or otherwise, to the standard of the
ordinary skilled surgeon exercising and professing to have
the special skill of a surgeon (dictum of McNair Jo. In
Bo/am v. Friem Hospital Management Committee (1957)
2 All ER 118 at 121).
D
54. In Chin Keow v. Government of Malaysia & Anr.
(1967) WLR 813: the Privy Council applied these words of
McNair J in Bo/am v. Friern Hospital Management
Committee:
E " .......... where you get a situation which involves the use of
some special skill or competence, then the test as to
whether there has been negligence or not is not the test
of the man on the top of a Clapham omnibus because he
has not got this special skill. The test is the standard of
F the ordinary skilled man exercising and professing to have
that special skill." -
55. This court in the case of State of Haryana v. Smt.
Santra (2000) 5 sec 182 in the matter of negligence relied
G upon the case of Bo/am v. Friern Hospital Management
Committee (supra) and on Whitehouse v. Jordan & Another
(supra).
56. In Poonam Verma v. Ashwin Patel & Ors. (1996) 4
sec 332 where the question of medical negligence was
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 711
RESEARCH CENTRE [DALVEER BHANDARI, J.]
considered in the context of treatment of a patient, it was A
observed asunder:-
"40. Negligence has many manifestations - it may be active
negligence, collateral negligence, comparative negligence,
concurrent negligence, continued negligence, criminal B
negligence, gross negligence, hazardous negligence,
active and passive negligence, wilful or reckless
negligence or Negligence per se."
57. In the instant case, Dr. Kapil Kumar, respondent no.3
who performed the operation had reasonable degree of skill C
and knowledge. According to the findings of the National
Commission, he cannot be held guilty of negligence by any
stretch of imagination.
58. Negligence per-se is defined in Black's Law Dictionary D
as under:-
Negligence per-se: - Conduct, whether of action or
omission, which may be declared and treated as
negligence without any argument o"r proof as to the
particular surrounding circumstances, either because it is E
in violation of a statute or valid municipal ordinance, or
because it is so palpably opposed to the dictates of
common prudence that it can be said without hesitation or
doubt that no careful person would have been guilty of it.
As a general rule, the violation of a public duty, enjoined F
by law for the protection of person or property, so
constitutes."
59. In Bo/am v. Friem Hospital Management Committee
(supra), Lord McNair said : " .......... I myself would prefer to put G
it this way: A doctor is not guilty of negligence if he has acted
in accordance with a practice accepted as proper by a
responsible body of medical men in that particular art". In the
instant case, expert opinion is in favour of the procedure
adopte<;i by Opposite Party No.3 at the time of Surgery on H
-
712 SUPREME COURT REPORTS [2010) 2 S.C.R.
A 2.4.90.
60. The test is the standard of ordinary skilled man
exercising and professing to have that special skill.
61. In Roe and Woolley (supra) Lord Denning said:
B
'We should be doing a dis-service to the community at
large if we were to impose liability on Hospitals and
Doctors for everything that happens to go wrong".
C 62. Other rulings and judgments also hold and support this
view. It is on these judgments that the Supreme Court has relied
to determine negligence or otherwise.
63. Judgment in the case of State of Haryana (supra) in
the context of· Negligence per se', is not applicable in the instant
D case, as herein, there was no violation of public duty enjoined
by law. The term 'negligence' is used for the purpose of
fastening the defendant with liability under the Civil Law and,
at times, under the Criminal Law. It is contended on behalf of
the respondents that in both the jurisdictions, negligence is
E negligence, and jurisprudentially no distinction can be drawn
between negligence under civil law and negligence under
criminal law.
64. In R. v. Lawrence, [1981) 1 All ER 974 (HL), Lord
F Diplock spoke for a Bench of five judges and the other Law
Lords agreed with him. He reiterated his opinion .in R. v.
Caldwell 1981(1) All ER 961 (HL) and dealt with the' concept
of recklessness as constituting mens rea in criminal law. His
Lordship warded against adopting the simplistic approach of
treating all problems of criminal liability as soluble by
G classifying the test of liability as being "subjective" or
"objective", and said "Recklessness on the part of the doer
of an act does presuppose that there is something in the
circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was
H capable of causing the kind of serious harmful consequences
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 713
RESEARCH CENTRE [DALVEER BHANDARI, J.]
that the section which creates the offence was intended to A
prevent, and that the risk of those harmful consequences
occurring was not so slight that an ordinary prudent individual
would feel justified in treating them as negligible. It is only when
this is so that the doer of the act is acting 'recklessly' if, before
doing the act, he either fails to give any thought to the possibility B
of there being any such risk or, having recognized that there
was such risk, he nevertheless goes on to do it."
65. We are here concerned with the criminal negligence.
We have to find out that the rashness was of such a degree as
to amount to taking a hazard knowing that the hazard was of C
such a degree that injury was most likely imminent. The element
of criminality is introduced by the accused having run the risk
of doing such an act with recklessness and indifference to the
consequences.
D
66. Lord Atkin in his speech in Andrews v. Director of
Public Prosecutions, [1937] AC. 576, stated, "Simple lack of
care -- such as will constitute civil liability is not enough; for
purposes of the criminal law there are degrees of negligence;
and a very high degree of negligence is required to be proved E
before the felony is established." Thus, a clear distinction exists
between "simple lack of care" incurring civil liability and "very
high degree of negligence" which is required in criminal cases.
Lord Porter said in his speech in the same case - "A higher
degree of negligence has always been demanded in order to F
establish a criminal offence than is sufficient to create civil
liability. (Charlesworth & Percy on Negligence (10th Edn., 2001)
Para 1.13).
67. The aforementioned statement of law in Andrews's
case (supra) has been noted for approval by this court in Syad G
Akbar v. State of Kamataka (1980) 1 SCC 30. This court has
dealt with and pointed out with reasons the distinction between
negligence in civil law and in criminal law. The court opined that
there is a marked difference as to the effect of evidence, viz.
the proof, in civil and criminal proceedings. In civil proceedings, H
-
714 SUPREME COURT REPORTS (2010] 2 S.C.R.
A a mere preponderance of probability is sufficient, and the
defendant is not necessarily entitled to the benefit of every
reasonable doubt; but in criminal proceedings, the persuasion
of guilt must amount to such a moral certainty as convinces the
mind of the Court, as a reasonable man, beyond all reasonable
s doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution
must be culpable or gross and not the negligence merely based
upon an error of judgment.
C 68. A three-Judge Bench of this court in Bhalchandra alias
Bapu & Another v. State of Maharashtra Al R 1968 SC 1319
has held that while negligence is an omission to do something
which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would
do, or doing something which a prudent and reasonable man ,
D would not do; criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper care
and precaution to guard against injury either to the public
generally or to an individual in particular, which having f€gard
to all the circumstances out of which the charge has arisen, it
E was the imperative duty of the accused person to have adopted.
69. This court in a landmark judgment in Jacob Mathew v.
State of Punjab & Another (2005) 6 SCC 1 while dealing with
the,case of negligence by professionals also gave illustration
F of legal profession. The court observed as under:-
"18. In the law of negligence, professionals such as
lawyers, doctors, architects and others are included in the
category of persons professing some special skill or skilled
persons generally. Any task which is required to be
G performed with a special skill would generally be admitted
or undertaken to be performed only if the person
possesses the requisite skill for performing that task. Any
reasonable man entering into a profession which requires
a particular level of learning to be called a professional of
H that branch, impliedly assures the person dealing with him
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 715
RESEARCH CENTRE [DALVEER BHANDARI, J.]
that the skill which he professes to possess shall be A
exercised and exercised with reasonable degree of care
and caution. He does not assure his client of the result. A
lawyer does not tell his client that the client shall win the
case in all circumstances. A physician would not assure
the patient of full recovery in every case. A surgeon cannot B
and does not guarantee that the result of surgery would
invariably be beneficial, much less to the extent of 100%
for the person operated on. The only assurance which such
a professional can give or can be understood to have given
by implication is that he is possessed of the requisite skil! c
in that branch of profession which he is practising and
while undertaking the performance of the task entrusted to
him he would be exercising his skill with reasonable
competence. This is all what the person approaching the
professional can expect. Jud.ged by this standard, a D
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. The standard to be applied E
for judging, whether the person charged has been negligent
or not, would be that of an ordinary competent person
exercising ordinary skill in that profession. It is not
necessary for every professional to possess the highest
level of expertise in that branch which he practices. In
Michael Hyde and Associates v. J.D. Williams & Co. Ltd., F
[2001] P.N.L.R. 233, CA, Sedley L.J. said that where a
profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the
defendant is to be judged by the lowest standard that would
be regarded as acceptable. (Charles worth & Percy, ibid, G
Para 8.03)"
70. In Jacob Mathew's case, this court heavily relied on the
case of Bo/am (supra). The court referred to the opinion of
McNair, J. defining negligence as under:- H
716 SUPREME COURT REPORTS (2010) 2 S.C.R.
A "19.Where you get a situation which involves the use of
some special skill or competence, then the test as to
whether there has been negligence or not is not the test
of the man on the top of a Clapham omnibus, because he
has not got this special skill. The test is the standard of
B the ordinary skilled man exercising and professing to have
that special skill ... A man need not possess the highest
expert skill; it is well established law that it is sufficient if
he exercises the ordinary skill of an ordinary competent
man exercising that particular art."
c 71. In Eckersley v. Binnie, Bingham, L.J. summarized the
Bolam test in the following words :-
"From these general statements it follows that a
professional man should command the corpus of
D knowledge which forms part of the professional equipment
of the ordinary member of his profession. He should not
lag behind ·other ordinary assiduous and intelligent
members of his profession in knowledge of new advances,
discoveries and developments in his field. He should have
E such an awareness as an ordinarily competent practitioner
would have of the deficiencies in his knowledge and the
limitations on his skill. He should be alert to the hazards
and risks in any professional task he undertakes to the
extent that other ordinarily competent members of the
profession would be alert. He must bring to any
F
professional task he undertakes no less expertise, skill
and care than other ordinarily competent members of his
profession would bring, but need bring no more. The
standard is that of the reasonable average. The law does
not require of a professional man that he be a paragon
G
combining the qualities of polymath and prophet." (Charles
worth & Percy, ibid, Para 8.04)
72. The degree of skill and care required by a medical
practitioner is so stated in Halsbury's Laws of England (Fourth
H Edition, Vol.30, Para 35):-
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 717
RESEARCH CENTRE [DALVEER BHANDARI, J.]
"The practitioner must bring to his task a reasonable A
degree of skill and knowledge, and must exercise a
reasonable degree of care. Neither the very highest nor a
very tow degree of care and competence, judged in the
tight of the particular circumstances of each case, is what
the law requires, and a person is not liable in negligence B
because someone else of greater skill and knowledge
would have prescribed different treatment or operated in
a different way; nor is he guilty of negligence if he has
acted in accordance with a practice accepted as proper
by a responsible body of medical men skilled in that c
particular art, even though a body of adverse opinion also
existed among medical men.
Deviation from normal practice is not necessarily evidence
of negligence. To establish liability on that basis it must be
shown (1) that there is a usual and normal practice; (2) that D
the defendant has not adopted it; and (3) that the course
in fact adopted is one no professional man of ordinary skill
would have taken had he been acting with ordinary care."
73. In Hucks v. Cole & Anr. (1968) 118 New LJ 469, Lord E
Denning speaking for the court observed as under:-
"a medical practitioner was not to be held liable simply
because things went wrong from mischance or
misadventure or through an error of judgment in choosing F
one reasonable course of treatment in preference of
another. A medical practitioner would be liable only where
his conduct fell below that of the standards of a reasonably
competent practitioner in his field."
74. In another leading case Maynard v. West Midlands G
Regional Health Authority the words of Lord President (Clyde)
in Hunterv. Hanley 1955 SLT 213 were referred to and quoted
as under:-
"In the realm of diagnosis and treatment there is ample H
718 SUPREME COURT REPORTS [2010] 2 S.C.R.
A scope for genuine difference of opinion and one man
clearly is not negligent merely because his conclusion
differs from that of other professional men ... The true test
Jor establishing negligence in diagnosis or treatment on
the part of a doctor is whether he has been proved to be
B guilty of such failure as no doctor of ordinary skill would
be guilty of if acting with ordinary care ... ".
The court per Lord Scarman added as under:-
"A doctor who professes to exercise a special skill must
C exercise the ordinary skill of his specialty. Differences of
opinion and practice exist, and will always exist, in the
medical as in other professions. There is seldom any one
answer exclusive of all others to problems of professional
judgment. A court may prefer one body of opinion to the
D other, but that is no basis for a conclusion of negligence."
75: The ratio of Bolam's case is that it is enough for the
defenda·nt to show that the standard of care and the skill
attained was that of the ordinary competent medical practitioner
E 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 in the light of knowledge available at the time (of the
F 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 been used.
G
76. A mere deviation from normal professional practice is
not necessarily evidence of negligence.
77. In Jacob Mathew's case (supra) this court observed
H that higher the acuteness in emergency and higher the
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 719
RESEARCH CENTRE [DALVEER BHANDARI, J.]
complication, more are the chances of error of judgment. The A
court further observed as under:-
"25 ...... At times, the professional is confronted with making
a choice between the devil and the deep sea and he has
to choose the lesser evil. The medical professional is often
8
called upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as providing
greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of
failure. Which course is more appropriate to follow, would C
depend on the facts and circumstances of a given case.
The usual practice prevalent nowadays is to obtain the
consent of the patient or of the person in-charge of the
patient if the patient is not be in a position to give consent
before adopting a given procedure. So long as it can be
found that the procedure which was in fact adopted was D
one which was acceptable to medical science as on that
date, the medical practitioner cannot be held negligent
merely because he chose to follow one procedure and not
another and the result was a failure."
E
78. A doctor faced with an emergency ordinarily tries his
best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to clearly
make out a case of negligence before a medical practitioner F
is charged with or proceeded against criminally. This court in
Jacob Mathew's case very aptly observed that a surgeon with
shaky hands under fear of legal action cannot perform a
successful operation and a quivering physician cannot
administer the end-dose of medicine to his patient.
G
79. Doctors in complicated cases have to take chance
even if the rate of survival is low.
80. The professional should be held liable for his act or
omission, if negligent, is to make life safer and to eliminate the H
720 SUPREME COURT REPORTS [2010) 2 S.C.R.
A possibility of recurrence of negligence in future. But, at the same
time courts have to be extremely careful to ensure that
unnecessarily professionals are not harassed and they will not
be able to carry out their professional duties without fear.
81. It is a matter of common knowledge that after happening
8
of som~ unfortunate event, there is a marked tendency to look
for a human factor to blame for an untoward event, a tendency
which is closely linked with the desire to punish. Things have
gone wrong and, therefore, somebody must be found to answer
C for it. A professional deserves total protection. The Indian Penal
Code has taken care to ensure that people who act in good
faith should not be punished. Sections 88, 92 and 370 of the
Indian Penal Code give adequate protection to the
professional and particularly medical professionals.
D 82. The Privy Council in John Oni Akerele v. The King AIR
1943 PC 72 dealt with a case where a doctor was accused of
manslaughter, reckless and negligent act and he was
convicted. His conviction was set aside by the House of Lords
and it was held thus:-
E
(i) That a doctor is not criminally responsible for a patient's
death unless his negligence or incompetence went beyond
a me~e matter of compensation between subjects and
showed such disregard for life and safety of others as to
amount to a crime against the State.;
F
(ii) That the degree of negligence required is that it should
be gross, and that neither a jury nor a court can transform
negligence of a lesser degree into gross negligence
merely by giving it that appellation .... There is a difference
G in kind between the negligence which gives a right to
compensation and the negligence which is a crime.
(iii) It is impossible to define culpable or criminal
negligence, and it is not possible to make the distinction
between actionable negligence and criminal negligence
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 721
RESEARCH CENTRE [DALVEER BHANDARI, J.]
intelligible, except by means of illustrations drawn from A
actual judicial opinion .... The most favourable view of the
conduct of an accused medical man has to be taken, for
it would be most fatal to the efficiency of the medical
profession if no one could administer medicine without
a halter round his neck. " B
(emphasis supplied)
83. In the said case, their Lordships refused to accept the
view that criminal negligence was proved merely because a
number of persons were made gravely ill after receiving an C
injection of Sobita from the appellant coupled with a finding that
'a high degree of care was not exercised. Their Lordships ·also
refused to agree with the thought that merely because too strong
a mixture was dispensed once and a number of persons were
made gravely ill, a criminal degree of negligence was proved. D
84. This court in Kurban Hussein Mohammedali
Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while
dealing with Section 304A of IPC, the following statement of
law by Sir Lawrence Jenkins in Emperor v. Omkar Rampratap E
(1902) 4 Born LR 679, was cited with approval:-
"To impose criminal liability under Section 304A, Indian
Penal Code, it is necessary that the death should have
been the direct result of a rash and negligent act of the
accused, and that act must be the proximate and efficient F
cause without the intervention of another's negligence. It
must be the causa causans; it is not enough that it may
have been the causa sine qua non."
85. In Dr. Laxman Balkrishna Joshi (supra), the court G
observed that the practitioner must bring to his task a
reasonable degree of skill and knowledge and must exercise
a reasonable degree of care. Neither the very highest nor a very
low degree of care and competence judged in the light of the
particular circumstances of each case is what the law H
722 SUPREME COURT REPORTS [2010] ·2 S.C.R.
A requires. The doctor no doubt has a discretion in choosing
treatment which he proposes to give to the patient and such
discretion is relatively ampler in cases of emergency. In this
case, the death of patient was caused due to shock resulting
from reduction of the fracture attempted by doctor without taking
B the elementary caution of giving anaesthetic to the patient. The
doctor was· held guilty of negligence and liability for damages
in civil law.. We hasten to add that criminal negligence or liability
under criminal law was not an issue before the Court - as it did
not arise and hence was not considered.
c 86. In a significant judgment in Indian Medical Association
v. V.P. Shantha & Others (1995) 6 SCC 651, a three-Judge
Bench of this Court held that service rendered to a patient by
a medical practitioner (except where the doctor renders service
free of charge to every patient or under a contract of personal
D service), by way of consultation, diagnosis and treatment, both
medicinal and surgical, would fall within the ambit of 'service'
as defined in Section 2(1)(o) of the Consumer Protection Act,
1986. Deficiency in service has to be judged by applying the
test of reasonable skill and care which is applicable in action
E for damages for negligence.
87. In the said case, the court also observed as under:-
"22. In the matter of professional liability professions differ
from occupations for the reason that professions operate
F in spheres where success cannot be achieved in every
case and very often success or failure depends upon
factors beyond the professional man's control. In devising
a rational approach to professional liability which must
provide proper protection to the consumer while allowing
G for the factors mentioned above, the approach of the
Courts is to require that professional men should possess
a certain minimum degree of competence and that they
should exercise reasonable care in the discharge of their
duties. In general, a professional man owes to his client a
H duty in tort as well as in contract to exercise reasonable
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 723 .
RESEARCH CENTRE [DALVEER BHANDARI, J.]
care in giving advice or performing services. (see: A
Jackson and Powell on Professional Negligence, 3rd Edn.
paras 1-04,1-05 and 1-56).
88. In Achutrao Haribhau Khodwa & Others v. State of
Maharashtra & Others (1996) 2 SCC 634, this Court noticed
B
that in the very nature of medical profession, skills differs from
doctor to doctor and more than one alternative course of
treatment are available, all admissible. Negligence cannot be
attributed to a doctor so long as he is performing his duties to
the best of his ability and with due care and caution. Merely C
because the doctor chooses one course of action in 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.
89. In Spring Meadows Hospital & Another (supra), the D
court observed that an error of judgment is not necessarily
negligence. In Whitehouse (supra) the court observed as
under:-
"The true position is that an error of judgment may, or may E
not, be negligent, it depends on the nature of the error. If it
is one that would not have been made by a reasonably
competent professional man professing to have the
standard and type of skill that the defendant holds himself
out as having, and acting with ordinary care, then it is
negligence. If, on the other hand, it is an error that such a
F
man, acting with ordinary care, might have made, then it
is not negligence."
90. In Jacob Mathew's case (supra), conclusions summed
up by the court were very apt and some portions of which are G
reproduced hereunder:-
(1) Negligence is the breach of a duty caused by
omission to do something which a reasonable man
guided by those considerations which ordinarily H
724 SUPREME COURT REPORTS [2010) 2 S.C.R.
A regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable
man would not do. The definition of negligence as
given in Law of Torts, Ratanlal & Dhirajlal (edited
by Justice G.P. Singh), referred to hereinabove,
B holds good. Negligence becomes actionable on
account of injury resulting from the act or omission
amounting to negligence attributable to the person
sued. The essential components of negligence are
three: 'duty', 'breach' and 'resulting damage'.
c (2) Negligence in the context of medical profession
necessarily calls for a treatment with a difference.
To infer rashness or negligence on the part of a
professional, in particular a doctor, additional
considerations apply. A case of occupational
D negligence is different from one of professional
negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence
on the part of a medical professional. So long as a
doctor follows a practice acceptable to the medical
E profession of that day, he cannot be held liable for
negligence merely because a better alternative
course or method of treatment was also available
or simply because a more skilled doctor would not
have chosen to follow or resort to that practice or
F procedure which the accused followed.
(3) The standard to be applied for judging, whether the
person charged has been negligent or not, would
be that of an ordinary competent person exercising
ordinary skill in that profession. It is not possible for
G
every professional to possess the highest level of
expertise or skills in that branch which he practices.
A highly skilled professional may be possessed of
better qualities, but that cannot be made the basis
or the yardstick for judging the performance of the
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 725
RESEARCH CENTRE [DALVEER BHANDARI, J.]
professional proceeded against on indictment of A
negligence.
91. To prosecute a medical professional for negligence
under criminal law it must be shown that the accused did
something or failed to do something which in the given facts 8
and circumstances no medical professional in his ordinary
senses and prudence would have done or failed to do. The
hazard taken by the accused doctor should be of such a nature
that the injury which resulted was most likely imminent.
92. In a relatively recent case in C.P. Sreekumar (Dr.), MS C
(Ortho) v. S. Ramanujam (2009) 7 sec 130 this court had an
occasion to deal with the case of medical negligence in a case
in which the respondent was hit by a motor-cycle while going
on his by-cycle sustained a hairline fracture of the neck of the
right femur. D
93. Pre-operative evaluation was made and the appellant
Dr. Sreekumar, on considering the various options available,
decided to perform a hemiarthroplasty instead of going in for
the internal fixation procedure. The respondent consented for E
the choice of surgery after the various options have been
explained to him. The surgery was performe~ the next day. The
respondent filed a complaint against the appellant for medical
negligence for not opting internal fixation procedure. This court
held that the appellant's decision for choosing hemiarthroplasty
F
with respect to a patient of 42 years of agewas not so palpably
erroneous or unacceptable as to dub it as a case of
professional negligence.
94. On scrutiny of the leading cases of medical negligence
both in our country and other countries specially United G
Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following
wel\ known principles must be kept in view:-
H
726 SUPREME COURT REPORTS (2010) 2 S.C.R.
A I. Negligence is the breach of a duty exercised by
omission to do 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
B man would not do.
II. Negligence is an essential ingredient of the offence.
The negligence to be established by the
prosecution must be culpable or gtoss and not the
negligence merely based upon an error of judgment.
c
Ill. The medical professional is expected to bring a
reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the
very highest nor a very low degree of care and
D 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
E
reasonably 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
F because his conclusion differs from that of other
professional doctor.
VI. The medical professronal is often called upon to
adopt a procedure which involves higher element
G 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 failme. Just because a professional
looking to the gravity of illness has taken higher .
element of risk to redeem the patient out of his/her
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 727
RESEARCH CENTRE [DALVEER BHANDARI, J.]
suffering which did not yield the desired result may A
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 because the doctor chooses B
one course of action in 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 c
medical profession if no Doctor could administer
medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil
society to ensure that the medical professionals are D
not unnecessary harassed or humiliated so that they
can perform their professional duties without fear
and apprehension.
X. The medical practitioners at times also have to be
saved from such a class of complainants who use E
criminal process as a tool for pressurizing the
medical professionals/hospitals particularly private
hospitals or clinics for extracting uncalled for
compensation. Such malicious proceedings
deserve to be discarded against the medical F
practitioners.
XI. The medical professionals are entitled to get
protection so long as they perform their duties with
reasonable skill and com.petence and in the interest G
of the patients. The interest and welfare of the
patients have to be paramount for the medical
professionals.
95. In our considered view, the aforementioned principles
H
728 SUPREME COURT REPORTS [2010] 2 S.C.R.
A 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 performed their duties and exercised
an ordinary degree of professional skill and competence, they
B cannot be held guilty of medical negligence. It is imperative that
the doctors must be able to perform their professional duties
with free mind.
96. When we apply well settled principles enumerated in
the preceding paragraphs in dealing with cases of medical
C negligence, the conclusion becomes irresistible that the
appellants have failed to make out any case of medical
negligence against the respondents.
97. The National Commission was justified in dismissing
D the complaint of the appellants. No interference is called for.
The appeal being devoid of any merit is dismissed. In view of
the peculiar facts and circumstances of this case the parties
are directed to bear their own costs.
E R.P. Appeal dismissed.
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