Holding

The Supreme Court held that no medical negligence or deficiency in service was established against the doctors or the hospital, and therefore dismissed the appeal.

Summary

The appellant, sister of the deceased Priya Malhotra, alleged that doctors and Bombay Hospital were negligent, leading to Priya's death from peritonitis and renal failure. The National Consumer Disputes Redressal Commission dismissed the complaint for lack of proof of negligence, a decision the appellant challenged before the Supreme Court. The Court examined the medical records, post‑mortem report, and the unanimous exoneration by the Maharashtra Medical Council, noting that the patient was already in end‑stage renal failure and that the relative had refused haemodialysis and pneumothorax treatment. Applying the standard of care of an ordinary competent practitioner and the Bolam test, the Court found no breach of duty or deficiency in service. Consequently, the appeal was dismissed, upholding the Commission’s order.

Issues considered

Whether the doctors and hospital were negligent within the meaning of the Consumer Protection Act, 1986.
Whether the standard of care required of medical professionals was breached in the treatment of Priya Malhotra.
Whether the refusal of haemodialysis by the relative amounts to a deficiency in service attributable to the respondents.

Legislation cited

Consumer Protection Act, 1986s. 23
Indian Penal Code, 1860s. 304-A

Subjects

medical negligenceconsumer protectiondeficiency in servicestandard of careBolam testpost‑mortemrenal failurehaemodialysis refusalMaharashtra Medical Council

Judgment

[2009] 4 S.C.R. 1062

A MS. INS. MALHOTRA
v
DR. A. KRIPLANI & ORS.
Civil Appeal No. 1386 of 2001
MARCH 24, 2009
B
(LOKESHWAR SINGH PANTA AND 8. SUDERSHAN
REDDY, JJ)
CONSUMER PROTECTION ACT, 1986: . ·-
c Deficiency in service - Medical negligence - Patient with
renal failure admitted in hospital - Death of patient under
treatment in hospital - Comp/amt against doctors and hospital
- Dismissed by National Commission - HELD.· The record
shows the unanimous decision of the State Medical CouncH
D that there was no negligence on the part of medical
practitioners - Besides, the relative of patient had refused
Haemodia/ysis and Pneumothorax on her risk - The record
shows that before the patient was brought to hospital, renal
failure had already taken place - The allegations made in the
complaint do not make out a case of negligence or deficiency
E
in service on the part of the doctors and the Hospital - There
is no infirmity or perversity in the findings recorded by
Commission warranting any interference in appeal.
On 14.7.1989, the sister of the complainant-appellant
F was admitted in respondent no. 7-Hospital. She died on
20.8.1989. In the complaint before the National Consumer
Disputes Redressal Commission, it was alleged that the
patient died due to the negligence of the respondent-
doctors. The respondents filed their written statements.
G The appellant could not lead evidence of any expert doctor t
in support of her complaint and stated before the
Commission that no expert doctor was willing to give any
opinion against the respondent-doctors and the hospital.
The counsel for the respondents stated before the
H 1062
MS. INS. MALHOTRA V. DR. A. KR/PLAN/ & ORS. 1063

. _., Commission that they did not intend to cross-examine the A
appellant nor did any of them appear in support of his/
. her defence as pleaded in the written statements. On
1
· consid eration of the material on ri:lcord, the National
Commission dismissed the complaint holding that the
complainant was not able to establish a case of medical B
negligence against the respondents. Aggrieved, the
complainant filed the appeal.

}
Dismissing the appeal, the Court
HELD: 1.1 Dealing with a case of medical negligence c
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 negligence
in future.[para 18.1] [1081-A-B] D
..
• 1.2 Negligence in the context of the medical
profession necessarily calls for a treatment with a
difference. A case of occupational negligence is different
from one of professional negligence. A simple lack of care,
an error of judgment or an accident, is not proof of E
negligence on the part of a medical professional. So long
as a doctor follows a practice acceptable to the medical
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 F
a more skilled doctor would not have chosen to follow or
resort to that practice or procedure which the accused
followed. [para 18.2) [1081-C-F]

- -+
Bo/am vs. Friern Hospital Management Committee
(1957) 2All ER 118-referred to. G
1.3 In tort, it is enough for the 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 a H
1064 SUPREME COURT REPORTS (2009) 4 S.C.R.

A defendant charged with negligence acted in accord with
the general and approved practice is enough to clear him
.
I
of the charge. Three 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
B at the time (of the incident), and not at the date of trial.
Secondly, when the charge of negligence arises out of
failure to use some particular equipment, the charge
would fail if the equipment was not generally available at
that point of time (that is, the time of the incident) on which
c itit comes
is suggested as should have been used. Thirdly, when
to the failure of taking precautions, what has to
be seen is whether those precautions were taken which
a men of ordinary experience has found to be sufficient;
a failure to use special or extraordinary precautions which
might have prevented the particular happening cannot be
D the standard for judging the alleged negligence. [para 18.2)
[1081-F-H; 1082-A-C] f ...
1.4 A medical practitioner faced with an emergency
ordinarily tries his best to redeem the patient out of his
suffering. He does not gain anything by acting with negli-
E gence or by omitting to do an act. Obviously, therefore, it
will be for the complainant to clearly make out a case of
negligence before a medical practitioner is charged with
or proceeded against criminally. [para 18.3) [1082-D-E]
State of Punjab v. Shiv Ram and Others [2005] 7 SCC 1
F
- referred to.
2.1 The National Commission in its order has noticed
the unanimous decision of Maharashtra Medical Council
dated 13.05.1999 to the effect that 'there is no negligence
G on the part of medical practitioners and they have mana- .
ged the case to the best of their ability, therefore, it was t
unanimously resolved to drop the said inquiry and the
medical practitioners be exonerated.' [para 8) [1072-E-G]
2.2 In the light of the unrebutted and uncontroverted
H statement of respondent no. 2, doctor, the National
MS. INS. MALHOTRA V. DR. A. KRIPLANI & ORS. 1065

-- ,_.
Commission, has rightly come to the conclusion that the A
appellant has failed to establish that the doctor, in any
manner, was negligent or careless in performing laparos-
copy upon the deceased. [para 11] [1074-H; 1075-A]
2.3 On re-examination and re-appraisal of the entire
B
material on record, it is clear that there was absolutely no
difference or divergence of opinion between a team of
specialists and experts at any stage about the method
....., and mode of treatment adopted by the respondent-
)
doctors. They had informed the patient and her relatives
' well in time that her condition was critical and kidney c
transplantation could not be done nearly for one year and
also the consequence of the renal failure suffered by the
patient. [para 15] [1077-E-G]
2.4 The condition of the patient started deteriorating D
-<(
~ day by day despite best care and attention of specialists
in l.C.U. The appellant was kept fully informed about the
deteriorating condition of the patient, but the appellant
abruptly instructed the doctors to stop haemodialysis
treatment to the patient. Because of the persisting demand
E
of the appellant, haemodiarysis was stopped which
according to the respondents resulted in the untimely
death of the patient. Exhibit-C which was part of the
continuation sheet of treatment of Medical Research ·-'

Centre of respondent no. 7-Hospital placed on record of F:
the Commission would reveal that on 23.08.1989 at 9.00
p.m., the patient was examined and it was also recorded
thereon "discussed with relatives and explained the
consequences of not draining of pneumothorax and not
doing haemodialysis". The appellant did not permit such
~
treatment and gave in writing "I refused Haemodialysis G
1 and Pneumothorax on my risk". [para 15] [1078-C-F]
2.5 The fact remains that when the patient was
brought to respondent no. 7-Hospital for treatment her health
was in very bad condition. Renal failure had already taken H
1066 SUPREME COURT REPORTS [2009] 4 S.C.R

A place. In the post mortem report, it finds recorded that the ~
patient was sick for four months by loose motions, vomiting
and she was admitted in respondent no. 7 Hospital on '
14.07.1989. She was operated on 09.08.1989 and she died
on 24.08.1989. The cause of death was peritonitis with
B renal failure. The appellant has not challenged the post-
mortem report. [para 16 and 19) [1078-G-H; 1083-G]
JacolJ Mathew v. State of Punjab and Another (2005) 6
sec 1 - referred to. .._
~

c 3.1 In the light of the propositions of law settled in
the judgments of this Court, it is clear that both on facts
and in law no case is made out by the appellant against
the respondents. The allegations made in the complaint
do not make out a case of negligence or deficiency in
D service on the part of the respondents. All the doctors who
treated the patient are skilled and duly qualified specialists f
in their respective fields and they have tried their best to ,.
save the life of the patient by joining their hands and heads
together and performed their professional duties as a team
work. [para 19) [1083-E-G]
E
3.2 On an independent examination of the order of
the Commission and the material on record, it is evident
that the Commission has properly and rightly appreciated
the entire factual and legal aspects of the matter and there "
F is no infirmity or perversity in the findings recorded by it
warranting any interference. [para 20) [1084-0-E]
Case Law Reference
(2005) s sec 1 referred to para 18
G (1957) 2 All ER 118 referred to para 18.2
~

c20051 1 sec 1 referred to para 18.4
CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1386
of 2001
H
MS. INS. MALHOTRA V DR A. KRIPLANI & ORS. 1067
......_\
From the Judgement and Order dated 15.09.2000 of the A
National Consumer Disputes Redressal Commission at New
Delhi in Original Petition No. 265of1992.
Shyam Diwan, P.K. Manohar, Ashok Kumar Singh,
Surinder Dutt Sharma, Naresh Kumar Gaur, Sapam B. Meitei,
B
Yogmaya Agnihotri, Sanjib Sen, Nandini Gore, Pragya Baghel,
Sonia Nigam, Manik Karanjawala, A.S. ~hasme, Brajesh

~
Pandey, Sandeep Narain, Shri Narain, Arti Tiwari (for Mis. S.
Narain & Co.), Jayashree Wad, Ashish Wad, Chirag S. Dave,
Satya Vikram, Sameer Abhyankar (for M/s. J.S. Wad & Co.),
for the appearing parties. c
The Judgement of the Court was delivered by
LOKESHWAR SINGH PANTA, J.
-,..
1] This appeal arises out of order dated 15.09.2000 of the D
National Consumer Disputes Redressal Commission
(hereinafter referred as the "Commission") in Original Petition
No. 265of1992, whereby a complaint filed by Ms. Ins. Malhotra-
complainant has been dismissed.
2] Brief facts leading to the filing of this appeal are as E
follows:
~
2.1] The complainant-appellant herein is the sister of Priya
Malhotra who died on 24.08.1989 in Bombay Hospital-
respondent no. 7 herein. In May, 1989 Priya Malhotra
F
complained of burning sensation in stomach, vomiting and
diarrhea. On 13.07.1989, her family doctor Dr. P.H. Joshi
advised to get the patient admitted to Bombay Hospital for
investigation and treatment under the care of Dr. Ramamoorthy.
1 On 14.07.1989, Priya Malhotra was admitted to the Bombay
Hospital, but on that day Dr. Ramamoorthy was out of station G
and in his absence Dr. Chaubal examined Priya Malhotra and
prescribed to undergo several tests. Priya Malhotra was
diagnosed as having Koch's of abdomen.
2.2] On 16/17 .07.1989, Dr. Jain suspecting kidney H
1068 SUPREME COURT REPORTS [2009] 4 S. C.R.
.........
A problem referred Priya Malhotra to Dr. A.Kriplani, a '
Nephrologist. On 18.07 .1989, Dr. A. Kriplani informed appellant
that Priya Malhotra had kidney failure and chronic renal failure.
The appellant consented for immediate Haemodialysis as was
recommended by the doctor to save Priya Malhotra's life. In
B .spite of Heamodialysis, Priya Malhotra continued to have
vomiting and diarrhea and the same went out of control. Dr. A.
Kriplani directed performance of Ba-meal and Ba-enema tests
suspecting Koch's of abdomen and the two tests conformed
dilated loops of small intestine. Dr. Vasant S. Sheth carried out
\ '
c ascetic tapping. On 22.07.1989, Dr. A. Kriplani advised
Peritoneoscopy for confirming Koch's of abdomen. On the same
day, on the recommendation of Dr. Vasant S. Sheth and Dr. A.
Kriplani, ultrasonography of upper abdomen was performed on
Priya Malhotra for confirmation of Koch's of abdomen. On
D 31.07.1989, Dr. Vasant S. Sheth performed ascetic tapping on
Priya Malhotra and the diagnosis made from Histopathologist
was confirmation of Koch's abdomen (anti malignant). Dr. A.
Kriplani prescribed Streptomycin injection with other medicines.
The two reports of M.D. (Pathologist) and Dr. Arun Chitale dated
E 01.08.1989 would show no T.B. organism in Peritoneal Fluid.
On 03.08.1989, Dr. A. Kriplani advised CT scan for confirmation
of T.B. lower abdomen. Priya Malhotra vomited and could not
be controlled even by giving l.V.C.C Perinorm injection. On
06.08.1989, chest X-ray taken by X-ray Department of the
F Bombay Hospital showed lung and pleura normal.
2.3] On 08.08.1989, Dr. Vasant S. Sheth and Dr. [Mrs.] S.
R. Jahagirdar examined Priya Malhotra and advised
laparoscopy. The operation was to be performed by Dr. [Mrs.]
S. R. Jahagirdar on 09.08.1989. Four bottles of blood were given ..
G to Priya Malhotra during diagnosis. Liver profile and renal profile
tests were performed. Liver profile showed 'Australia Antigen'
positive and renal profile showed low serum sodium and serum
potassium. On 09.08.1989, Dr. Pramod came at about 3:00
a.m. and removed Femoral Cath. On that day, Priya Malhotra
H was having high fever. On the same day, Dr. [Mrs.] S. R.
MS. INS. MALHOTRA V DR A KRIPLANI & ORS. 1069
' [LOKESHWAR SINGH PANTA, J.]
:-'-\
• Jahagirdar, could not attend the hospital and in her absence Dr. A
Pratima Prasad performed Laparoscopy when Dr. A. Kriplani,
Dr. Vasant S. Sheth and Dr. S. Gupta were also present in the
O.T.
2.4) After the operation, Priya Malhotra was removed to
B
the recovery room where she allegedly ·told the appellant by
gestures that she was having severe pain in the chest and she

'!f
. was speechless and having breathing difficulty. Dr. A. Kriplani
observed that there was no need to worry and Priya Malhotra
would be kept in l.C.U for two days under observation. On
12.08.1989, Priya Malhotra was shifted to 3rd floor of the hospital. c
According to the appellant, Priya Malhotra started becoming
semi-conscious and erratic in behaviour. On 20.08.1989, Priya
Malhotra developed intestinal fistula leading to her throwing out
liquid from her body and she developed serious infections
"' septicemia. On 22.08.1989, Priya Malhotra became deep D
unconscious and she passed no urine and her face was swollen.
On 23.08.1989, Dr. A. Kriplani advised Haemodialysis and
Pneumothorax. Unfortunately, on 24.08.1989 at about 9: 15 a.m.,
Priya Malhotra expired. On the same day, post-mortem upon
the dead body of Priya Malhotra was conducted at J.J. Hospital, E
Bombay. The post-mortem report. revealed the cause of death
~
1 was due to Peritonitis with renal failure.
2.5) The appellant filed police complaint against the doctors
of Bombay Hospital in Azad Maidan Police Station, Bombay. In
the year 1990, complaint was also filed before the Maharashtra F
Medical Council.
2.6) On 02.07.1992, written complaint was sent by post to
the National Consumer Disputes Redressal Commission, which
was registered as Complaint No. 265 of 1992 against Dr. A. G
Kriplani, Dr. [Mrs.] Pratima Prasad, Dr. S. Gupte, Dr. Singhania,
Dr. [Mrs.] S. R. Jahagirdar and Dr. Sachdeva. On notice, the
respondents entered appearance and filed their separate written
statements. The Bombay Hospital initially was not a party in the
complaint. An application for impleadment of Bombay Hospital H
1070 SUPREME COURT REPORTS [2009] 4 S.C.R.

,_
A
,..
as party respondent no. 7 was allowed by the Commission in
the year 1996.
3) During the course of the proceedings before the
,.•.. Commission, the appellant was granted opportunily to produce
·a written opinion of expert doctors in support of her allegations
made in the complaint against the named doctors and Bombay
Hospital for their medical negligence or lack of proper medical
treatment to deceased Priya Malhotra. The appellant could not
-
'
lead the evidence of any expert doctor in support of her complaint
t-
and she pleaded before the Commission that no expert doctor
c was willing to give an opinion against the doctors of Bombay
Hospital though, according to her, unofficially some doctors had
expressed an opinion that injustice had been done to deceased
Priya Malhotra. The appellant was issued notice to appear on
09.07.2000 for recording of her cross-examination. The counsel ..
D for the respondents stated before the Commission that they did
not intend to cross-examine the appellant. None of the
respondent had appeared as witness in support of his or her
defence, as pleaded in the written statement.
3.1) On consideration of the entire material on record, the
E
Commission vide its order dated 15.09.2000 dismissed the
complaint of the appellant holding that the complainant has not 'I
,.
been able to establish a case of medical negligence against
the respondents.

F 4) Being aggrieved thereby, the appellant has filed this
appeal under Section 23 of the Consumer Disp~tes Redressal
Commission Act, 1986 (hereinafter referred to as the "Act").
5) We have heard learned counsel for the parties, who
have taken us through the order of the Commission and other
G relevant materials brought on record.

6) The learned counsel appearing for the appellant
contended that the order of the Commission is bad on facts
and in law as the same is passed without proper appreciation
H of the evidence of the appellant made in examination-in-chief
MS. INS. MALHOTRA V. DR. A. KRIPLANI & ORS. 1071
[LOKESHWAR SINGH PANTA, J.]
......_' before the Commission which has gone unrebutted and A
uncontroverted as she has not been cross-examined by the
respondents. He next contended that none of the respondents
have appeared for cross-examination before the Commission
nor any one of them has filed evidence on affidavit as prescribed
under Section 13 (4) (iii) of the Consumer Protection Act, 1986 B
which prescribed procedure on admission of complaint before
the District Forum. The learned counsel also contended that
'"' ,. the appellant, despite her sincere efforts, could not get the
assistance of expert doctors in support of her complaint an.d to
dislodge the claim of the respondents, the Commission in the c
interest of the appellant could have on its own summoned expert
doctors from some Government institutions at Delhi to ascertain
whether proper and necessary medical treatment was given by

- ~
the doctors to Priya Malhotra or the doctors of Bombay Hospital
in discharge and performance of their duties were, in any D
manner, negligent and careless.
6.1) In support of his submission reliance is placed upon
a decision of this Court in Civil Appeal No. 3541 of 2002 titled
Martin F D'Souza v. Mohd. lshfaq decided on 17.02.2009. In
the said case, the Division Bench of this Court has passed some E
directions, which read as under:-
. "We, therefore, direct that whenever a complaint is
received against a doctor or hospital by the Consumer
Forum (whether District, State or National) or by the
Criminal Court then before issuing notice to the doctor or F
hospital against whom the complaint was made the
Consumer Forum or Criminal Court should first refer the
matter to a competent doctor or committee of doctors,
specialized in the field relating to which the medical
negligence is attributed, and only after that doctor or G
committee reports that there is a prima facie case of
medical negligence should notice be then issued to the
concerned doctor/hospital. This is necessary to avoid
harassment to doctors who may not be ultimately found to
be negligent. We further warn the police officials not to H
1072 SUPREME COURT REPORTS (2009] 4 S.C.R.

A arrest or harass doctors unless the facts clearly come
within the parameters laid down in Jacob Mathew's case
' -
(supra), otherwise the policemen will themselves have to
face legal action."
7) Mr. Shyam Diwan, Senior Advocate appearing on behalf
B
of Dr. Kriplani, has canvassed correctness of the views taken
by the Commission in the impugned order. He submitted that
the approach of the Commission in appreciating the ~ .
consequences of the complaint and the defence of the doctors
taken in their written statements can never be found faulty. He
c then contended that the evidence of the appellant in examination-
in-chief does not establish that Dr. A. Kriplani was ever negligent
in performing his duties in his discipline. He contended that the
treatment which was adopted by the doctors was inconformity
with the advice and opinion of Dr. P.H Joshi and Dr. 4

D Ramamoorthy and the appellant has not proved on record that
there was any kind of disagreement or divergence of opinion
between Dr. A. Kriplani on the one hand and Dr. P.H. Joshi on
the other hand. The learned counsel for other respondents has
adopted the arguments advanced by Mr. Shyam Diwan, Senior
E Advocate appearing for Dr. A. Kriplani.
8) In order to appreciate the rival contentions of the learned ;
counsel for the parties, we have examined the impugned order
of the Commission and the evidence led by the parties. The
Commission in its order has noticed the decision of Maharashtra
F Medical Council dated 13.05.1999, whereby the Registrar of
the Council conveyed that the Maharashtra Medical Council after
discussion on the merits and demerits of the case unanimously
resolved that 'there is no negligence on the part of medical
practitioners and they have managed the case to the best of ~

G their ability, therefore, it was unanimously resolved to drop the
said inquiry and the medical practitioners be exonerated.'
9) The order of the Commission would reveal that Dr. P.H
Joshi had made noting on 26.07 .1989 which reads
H "Laparoscopy SOS shall review later" while referring the case
MS. INS. MALHOTRA V. DR. A. KRIPLANI & ORS. 1073
[LOKESHWAR SINGH PANTA, J.]
...
• A
of Priya Malhotra to Dr. S.R. Jahagirdar who at the relevant time .,-·
was in-charge of Department of Obstetries and Gynaecology
of the Bombay Hospital. The appellant had no complaint to make
against Dr. P.H. Joshi, rather she had got full faith in him. As
noticed above, Dr. S.R. Jahagirdar was out of town on the day
when the patient was to be operated upon and in her absence B
Priya Malhotra was examined by Dr. Pratima Prasad and she
- .,. ~
has filed written statement before the Commission in which it
has categorically been stated that on perusal of the case papers,
~
she noticed that the patient was referred to her because of
suspected "Tubercular Peritonitis" of the lower abdomen and c
"renal failure". On examination of Priya Malhotra, Dr. Pratima
Prasad noticed that the patient was not getting menstruation
for the last three months although before that period, her
menstruation periods were stated to be normal. After clinical
.. examination, Dr. Pratima Prasad advised Ultrasonograph of the D
pelvis and laparoscopy to confirm the existence of tuberculosis
of the gynaecological parts. Dr. Pratima Prasad stated that
laparoscopy was considered necessary for confirmation of the
diagnosis of tuberculosis of the abdomen and to get the
histopathological report. She stated that in the presence of Dr.
E
Vasant V. Sheth laparoscopy was done. The laparoscopy was

• not contra-indicated from the various investigation reports and
check-ups carried out on the patient prior to 09.08.1989. The
Commission has in its order extracted the necessary averments
made by Dr. Pratima Prasad in her written statement in regard
to the procedure and method of conducting laparoscopy which, F
in our view, are not necessary to be repeated in this judgment
for unnecessarily burdening the record. The record produced
before the Commission would show that in the operation theatre,
1 the patient was jointly examined by Dr. A. Kriplani and Dr. S.R.
Gupte, Hon. Anaesthesiologist and they had taken conscious G
decision that the laparoscopy was not contra-indicated ln any
way. Dr. Pratima Prasad felt that an attempt to conduct
laparoscopy had to be abandoned and it became necessary to
perform the laparotomy to get tissue for biopsy which was the
main and only objective of the investigation. In the process, the H
1074 SUPREME COURT REPORTS [2009] 4 S.C.R.
~

A perforations caused during laparoscopy were duly sutured. On '
opening the abdomen, it was noticed that the patient had active
military tuberculosis. Peritoneum and all the abdominal
structures were adhered together. It was also noticed that the
intestines were perforated due to introduction of laparoscopy
B trocar and cannula. It was stated by Dr. Pratima Prasad that Dr.
Vasant V. Sheth performed the peritoneal biopsy and sutured
six intestinal perforations. The laparotomy was performed with .. .. -
complete success and did not create any complication to the .,
patient. Or. Pratima Prasad also submitted in her statement that
c it was conclusively proved by the post-mortem examination that
the sutured intestines had healed and had not developed any
leak.
10) Dr. Pratima Prasad has strongly refuted the allegation
made by the appellant that Tubercular Peritonitis had developed
D due to laparoscopy. She stated that Tubercular Peritonitis is a
chronic disease which could not suddenly develop. It was
already present when laparoscopy was conducted. Dr. Pratima
Prasad also stated in the written statement that the allegations
of the appellant that there was a departure from the line of action
E taken by Dr. P.H. Joshi and Dr. Ramamoorthy, were wholly untrue.
She stated that in fact, a perusal of the case papers would show
that Dr. P.H. Joshi had himself suggested laparoscopy on the
patient. It was her statement that medical opinion was clear that
tuberculosis of intestines could be detected best and easily by
F performing laparoscopy. The allegations of the appellant that
the right lung of Priya Malhotra was collapsed due to the
laparoscopy has empathetically been denied by her. Dr. Pratima
Prasad pleaded that during laparoscopy the direction of the
trocar and cannula were towards pelvis (downward direction) •
G eliminating any chance of causing pneumothorax or collapse of
the lung. The appellant could not lead evidence of any expert
doctor to counter or rebut the statement made by Dr. Pratima
Prasad in her written statement.
11) In the light of the unrebutted and uncontroverted
H statement of Dr. Pratima Prasad, the Commission, in our view,
MS. INS. MALHOTRA V. DR. A. KRIPLANI & ORS. 1075
[LOKESHWAR SINGH PANTA, J.]

has rightly come to the conclusion that the appellant has failed A
......
~ to establish that Dr. Pratima Prasad, in any manner, was
negligent or careless in performing laparoscopy upon the
deceased.

12) The appellant also alleged that Dr. A. Kriplani and his
B
team of doctors had discarded the line of treatment being
pursued by Dr. Ramamoorthy and Dr. P.H. Joshi, which had
resulted in the death of Priya Malhotra. The appellant could not
even remotely substantiate this allegation made against Dr. A.
> Kriplani. There is not an iota of evidence on record to prove that
Dr. A. Kriplani had ever departed from the line of treatment being c
taken and adopted by Dr. Ramamoorthy and Dr. P.H. Joshi. The
appellant has clearly and unequivocally stated that she had no
complaint against the line of treatment being advised by Dr.
P.H. Joshi. It was categorically stated by Dr. Pratima Prasad
and Dr. A. Kriplani in their respective written statements that it D
'
4 ;c
was Dr. P.H. Joshi who had in writing recommended
' laparoscopy and the said recommendation was placed on
record of the Commission by Dr. Pratima Prasad in support of
her written statement. The doctors-respondents who were
involved in the treatment of deceased Priya Malhotra have E
established on record that the course of treatment pursued by
them in the Bombay Hospital was in no way contradictory or
~ against the treatment given by Dr. Ramamoorthy. In fact, Dr.
Ramamoorthy had examined the patient and carried the
investigation as ·a result thereof it was found that the patient F
was suffering from chronic renal failure. Dr. Ramamoorthy
requested Dr. A. Kriplani-respondent no.1 for an opinion
recorded as "Unit Note" dated 16.07.1989, a copy thereof,has
been produced before the Commission duly signed by Dr.
Ramamoorthy. The contents of the "Unit Note" are extracted by
, the Commission in its order.
G

13) Dr. Vasant S. Sheth of Bombay Hospital for the first
time examined Priya Malhotra on 24.07 .1989 and found the
patient suffering from kidney failure. Dr. Vasant S. Sheth was
informed that the patient had been undergoing haemodialysis H
1076 SUPREME COURT REPORTS [2009] 4 S.C.R.

A since about 18.07.1989. On 21.07.1989, on clinical examination ...
and going through the reports of the investigation conducted till
that day, it was found that the patient was suffering from end-
•
stage renal failure and would require kidney transplant for her
survival. When various tests were carried out, Dr. A. Kriplani
B suspected the patient to be suffering from abdominal
tuberculosis. In view of the suffering from abdominal tuberculosis
and also of the gastrointestinal problems which had gone out of
proportion to the Uremia, the expert doctors-respondents had
decided not to carry out any operation for kidney transplant. Dr. •
c A. Kriplani and Dr. Vasant S. Sheth both had agreed that it would
not be advisable to carry out kidney transplant, having regard to
the state of health of the patient. The position of the patient was
fully explained by Dr. Vasant S. Sheth to the patient and the
appellant and both of them were informed that renal failure cases
D stood surgery bodily and were likely to develop complications
following minor surgery and might even result in death. On • ~

31.07.1989, Dr. Vasant S. Sheth performed diagnostic
peritoneal tap for ascetic fluid examination and also to judge
whether laparoscopy would be safe or not. Having regard to the
various problems of the patient and also the pathological and
E
other reports of the patient, Dr. A. Kriplani and his colleagues
came to the conclusion that there was no better method
available for the patient than to perform laparoscopy. Dr.
~
Ramamoorthy also examined patient on 04.08.1989 and
approved the decision of Dr. A. Kriplani to start anti-tuberculosis
F drugs and advised administration of rifampicin/pyrazinamide.
Dr. Ramamoorthy had also insisted upon decision to do
histopathological tissue diagnosis to confirm existence of
tuberculosis.

G 14) Dr. [Mrs.] S.R. Jahagirdar-respondent stated that Priya
Malhotra was admitted to Bombay Hospital under the •
observation of Dr. Ramamoorthy and was later being treated
by Dr. A. Kriplani who referred the patient to her for laparoscopy.
It was Dr. Vasant S. Sheth who on or about 08.09.1989
H contacted her on telephone and gave her the details of the
MS. INS. MALHOTRA V. DR. A. KRIPLANI & ORS. 1077
[LOKESHWAR SINGH PANTA, J.]

complications of Priya Malhotra. Dr. S. R. Jahagirdar stated A
-I
~ that Dr. [Mrs.] Pratima Prasad who had special training to perform
tissue biopsy by laparoscopy was assigned the job. Dr. A.
Kriplani is a Nephrologist, who at the relevant time was the ln-
charge of the Nephrology Unit of the Bombay Hospital. Dr.
Vasant S. Sheth is the General Surgeon, who is specialized in B
kidney transplant surgery. Dr. Vasant S. Sheth had to do
laparotomy on Priya Malhotra after having supervised

-- >-
laparoscopy conducted by Dr. [Mrs.] Pratima Prasad. On
21.07.1989, the patient was referred by Dr. Ramamoorthy to
Dr. A. Kriplani and Dr. Vasant S. Sheth. On detailed clinical c
examination and going through the records of the investigation
done upto 21.07.1989, Dr. Vasant S. Sheth came to the
conclusion that patient was at the end-stage of renal failure and
as such she needed kidney transplant for her survival as after
multiple sessions of haemodialysis the abdomen did not settle D
_, ~ down and also because of occurrence of recurrent features of
intestinal obstruction, it was decided not to have surgical
intervention in the case of the patient. Dr. Vasant S. Sheth
agreed to the opinion given by two doctors namely, Dr. A.
Kriplani and Dr. Ramamoorthy that the issue of kidney
E
transplantation did not arise till abdominal tuberculosis would
get healed completely.

• material
15) On re-examination and re-appraisal of the entire
on record, we find that there was absolutely no
difference or divergence of opinion between a team of F
specialists and experts consisting of Dr. Ramamoothy, Dr. P.H.
Joshi and Dr. A. Kriplani at any stage about the method and
mode of treatment adopted by doctors-respondents in this case.
Doctors had informed the patient and her relatives well in time
that condition of Priya Malhotra was critical and kidney G,
'( transplantation could not be done nearly for one year and also
the consequence of the renal failure suffered by the patient. Dr.
Vasant S. Sheth had opined that attempt to do laparoscopy had
failed in spite of two attempts and it became all the more
important to perform laparotomy to get tissue for biopsy and to
H
1078 SUPREME COURT REPORTS [2009] 4 S.C.R.

A avoid any further injury that might have occurred due to the ~.

attempt at laparoscopy. On opening abdomen of the patient it
became clear that the patient had extensive chronic peritonitis
plastering the whole intestinal tract and intestines were
perforated due to introduction of laparoscopic pressure and
B cannula. Dr. Vasant S. Sheth performed peritoneal biopsy and
sutured six intestinal perforations to start with. The patient was
put in l.C.U and at the initial stages she was doing well but

c
unfortunately on 17 .08.1989 i.e. eight days after the operation
she developed jaundice probably due to anti-tuberculosis drugs
which had to be stopped. The material on record would show
' --
that on 20.08.1989, the patient developed a fluid leak from the
abdomen due to the leakage of ascites or beginning of fecal
fistula. The condition of Priya Malhotra started deteriorating day
by day despite best care and attention of specialists in l.C.U.
D The appellant was kept fully informed about the deteriorating )
condition of the patient, but the appellant abruptly instructed the
doctors to stop haemodialysis treatment to the patient. Because
of the persisting demand of the appellant, haemodialysis was
stopped which according to the respondents resulted in the
untimely death of Priya Malhotra. Exhibit-C which was part of
E
the continuation sheet of treatment of Medical Research Centre
of Bombay Hospital placed on record of the Commission would
reveal that on 23.08.1989 at 9.00 p.m., the patient was examined ~
and it was also recorded thereon "discussed with relatives and
explained the consequences of not draining of pneumothorax
F and not doing haemodialysis". The appellant did not permit such
treatment and gave in writing "I refused Haemodialysis and
Pneumothorax on my risk".
16) In the facts and circumstances noticed hereinabove,
G the fact remains that when Priya Malhotra was brought to
Bombay Hospital for treatment her health was in very bad •
condition. Renal failure had already taken place. In the post
mortem report conducted at J.J. Hospital, Bombay, it finds
recorded that "patient was sick since four months by loose
motion, vomiting and she was admitted in Bombay Hospital
H
MS. INS. MALHOTRA V. DR. A KRIPLANI & ORS. 1079
[LOKESHWAR SINGH PANTA, J.]
,......_
_.., since 14.07.1989. She was operated on 09.08.1989 and died A,
~
on 24.08.1989. The cause of death was due to peritonitis with
renal failure".
17) In the backdrop of the factual situation of the present
case, we have examined the principles of law laid down by this
B
Court in the decisions cited by the learned counsel.
18) A three Judge Bench of this Court in the case of Jacob
Mathew v. State of Punjab and Another [(2005) 6 SSC 1) had
the occasion to deal with and decide the liability of doctors in a
death case arising due to criminal medical negligence for an c
offence under Section 304-A of the Indian Penal Code, 1860.
In the case of professional negligence, it was observed that 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 as skilled persons generally. D
+ Any task which is required to be 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
E
of that branch, impliedly assures the person dealing with him
that the skill which he professes to possess shall be exercised
~ with reasonable degree of care and caution. He does not assure
his client of the result. A physician would not assure the patient
of full recovery in every case. A surgeon cannot and does not
F
guarantee that the result of surgery would invariably be beneficial,
much less to the extent of 100% for the person operated on.
The only assurance which such a professional can give or can
be understood to have given by implication is that he is
possessed of the requisite skill in that branch of profession
.,. which he is practising and while undertaking the performance G
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. Judged by this
standard, the professional may be held liable for negligence on
one of two findings: either he was not possessed of the requisite H
1080 SUPREME COURT REPORTS [2009] 4 S.C.R.

A 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 for
judging, whether the person charged has been negligent or not,
would be that of an ordinary competent person exercising
B 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. 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
c professional proceeded against on indictment of negligence.
[Paras 18 and 48(3)]

18.1) In the case of medical negligence, it has been held
that the subject of negligence in the context of medical profession
necessarily calls for treatment with a difference. There is a
D marked tendency to look for a human actor 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 for it. An empirical study would reveal
that the background to a mishap is frequently far more complex
E than may generally be assumed. It can be demonstrated that
actual blame for the outcome has to be attributed with great
caution. For a medical accident or failure, the responsibility may
lie with the medical practitioner, and equally it may not. The
inadequacies of the system, the specific circumstances of the
F case, the nature of human psychology itself and sheer chance
may have combined to produce a result in which the doctor's
contribution is either relatively or completely blameless. The
human body and its working is nothing less than a highly complex
machine. Coupled with the complexities of medical science,
G the scope for misimpressions, misgivings and misplaced
allegations against the operator, i.e. the doctor, cannot be ruled
out. One may have notions of best or ideal practice which are
different from the reality of how medical practice is carried on
or how the doctor functions in real life. The factors of pressing
H need and limited resources cannot be ruled out from
MS. INS. MALHOTRA V. DR. A. KRIPLANI & ORS. 1081
[LOKESHWAR SINGH PANTA, J.]

''
~~
consideration. Dealing with a case of medical negligence needs A
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 negligence in future. The human body and
medical science, both are too complex to be easily understood. B
To hold in favour of existence of negligence, associated with
the action or inaction of a medical professional, requires an in-
.. I>-
depth understanding of the working of a professional as also
the nature of the job and of errors committed by chance, which
do not necessarily involve the element of culpability. c
18.2) Negligence in the context of the 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
~ negligence is different from one of professional negligence. A D
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
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of E
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice
or procedure which the accused followed. The classical
statement of law in Bolam's case, (1957) 2 All ER 118, at p.
121 D-F [set out in para 19 herein] has been widely accepted F
as decisive of the standard of care required both of professional
men generally and medical practitioners in particular, and holds
good in its applicability in India. In tort, it is enough for the
defendant to show that the standard of care and the skill attained
was that of the ordinary competent medical practitioner G
'(
exercising an ordinary degree of professional skill. The fact that
a defendant charged with negligence acted in accord with the
general and approved practice is enough to clear him of the
charge. It is not necessary for every professional to possess
the highest level of expertise in that branch which he practices.
H
1082 SUPREME COURT REPORTS [2009] 4 S.C.R.

A Three 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 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
B would fail if the equipment was not generally available at that
point of time (that is, the time of the incident) on which it is
suggested as should have been used. Thirdly, when it comes to
the failure of taking precautions, what has to be seen is whether
those precautions were taken which the ordinary experience of
•
c men has found to be sufficient; a failure to use special or
extraordinary precautions which might have prevented the
particular happening cannot be the standard for judging the
alleged negligence. [Paras 48 (2), 48 (4), 19 and 24]

18.3) Again, it has been held that indiscriminate prosecution
D of medical professionals for criminal medical negligence is
counter-productive and does no service or good to the society.
A medical practitioner faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering. He does not
gain anything by acting with negligence or by omitting to do an
E act. Obviously, therefore, it will be for the complainant to clearly
make out a case of negligence before a medical practitioner is
charged with or proceeded against criminally. A surgeon with
shaky hands under fear of legal action cannot perform a
successful operation and a quivering physician cannot
F administer the end-dose of medicine to his patient. If the hands
be trembling with the dangling fear of facing a criminal
prosecution in the event of failure for whatever reason-whether
attributable to himself or not, neither can a surgeon successfully
wield his life-saving scalpel to perform an essential surgery, nor
G can a physician successfully administer the life-saving dose of
medicine. Discretion being the better part of valour, a medical
professional would feel better advised to leave a terminal patient
to his own fate in the case of emergency where the chance of
success may be 10% (or so), rather than taking the risk of
H making a last ditch effort towards saving the subject and facing
MS. INS. MALHOTRA V. DR. A KRIPLANI & ORS. 1083
[LOKESHWAR SINGH PANTA, J]

a criminal prosecution if his effort fails. Such timidity forced upon A
a doctor would be a disservice to the society. (See paras 28,
29 and 47] ·
18.4) In the case of State of Punjab v. Shiv Ram and
Others (2005] 7 SCC 1, a three Judge Bench of this Court while B
dealing with the case of medical negligence by the doctor in
conducting sterilisation operations, reiterated and reaffirmed
that unless negligence of doctor is established, the primary
liability cannot be fastened on the medical practitioner. In
paragraph 6 of the judgment it is said: (page no. 7)
c
"Very recently, this Court has dealt with the issues of
medical negligence and laid down principles on which the
liability of a medical professional is determined generally
and in the field of criminal law in particular. Reference may
be had to Jacob Mathew v. State of Punjab (2005) 6 SCC D
1. The Court has approved the test as laid down in Bo/am
v. Friern Hospital Management Committee (1957) 1 WLR
582: (1957) 2 All ER 118 (QBD) popularly known as
Bolam's test, in its applicability to India".
19. In the light of the propositions of law settled in the above E
cited judgments of this Court, we are of the view that both on
facts and in law no case is made out by the appellant against
the respondents. The allegations made in the complaint do not
make out a case of negligence or deficiency in service on the
part of the respondents. It is not the ca-se of the appellant that F
the doctors named in the complaint are not qualified doctors
and specialized in their respective fields to treat the patient whom
they agreed to treat. All the doctors who treated the patient are
skilled and duly qualified specialists in their respective fields ·
and they have tried their best to save the life of Priya Malhotra G
by joining their hands and heads together and performed their
professional duties as a team work. The appellant has not
challenged the post mortem report dated 25.08.1989 submitted
by J.J. Hospital wherein it has been stated that before Priya
Malhotra.was admitted to Bombay Hospital, she was sick since H
1084 SUPREME COURT REPORTS [2009] 4 S.C.R.
..
A four months by loose motion and vomiting. A copy of post
mortem report of deceased Priya Malhotra placed on record of
the Commission by Dr. A. Kriplani with his evidence on affidavit
would read as under:

Ill] Microscopy - 1) Kidneys (same histology in sections
B
from the two bits) reveal advanced kidney disease in the
end stage. Most of the glomeruli are sclerosed/hyalinised
~ .
and structurally obsolete. Some of the few glomeruli not ~

effected by advanced sclerosis reveal hypercellularity

c
indicating that the end stage is the result of chronic
progressive diffuse proliferative glomerulinephritis. The
end stage lesion is extensive, irreversible and can cause
"
intractable chronic renal failure. Interstitial fibrosis and
inflammation are widespread.
t
D Finally, it was opined by doctors that the death of Priya
Malhotra was due to peritonitis with renal failure.
20) On our independent examination of the order of the
Commission and other entire material on record discussed
hereinabove, we find that the Commission has properly and
E rightly appreciated the entire factual and legal aspects of the
matter and there is no infirmity or perversity in the findings
~
recorded by the Commission which warrants any interference
in this appeal.
21) No other point has been raised by the appellant. We,
F thus, find no merit and substance in any of the submissions made
on behalf of the appellant.
22) In the result for the above-stated reasons there is no
merit in this appeal and it is, accordingly, dismissed.
J'
23) The parties are left to bear their own costs.

R.P. Appeal dismissed.