Holding

The Supreme Court upheld the finding of negligence at the pre‑operative and operative stages, rejected post‑operative negligence, and awarded compensation of approximately Rs. 1 crore, rejecting the hypothetical claim of Rs. 2 crore.

Summary

The case involves a 20‑year‑old engineering student who underwent excision biopsy of a mediastinal neurofibroma at Nizam's Institute of Medical Sciences and subsequently suffered acute paraplegia. The complainant alleged negligence before, during and after the operation and claimed compensation of over Rs. 4.61 crore, while the National Consumer Redressal Commission had awarded Rs. 14 lakh. On appeal, the Supreme Court examined the pre‑operative investigations, the failure to involve a neurosurgeon, and the lack of proper consent, finding the doctors seriously remiss in the pre‑operative and operative stages but not in post‑operative care. The Court held that once the plaintiff establishes a case of negligence, the burden shifts to the hospital to prove the absence of negligence. It affirmed the finding of negligence, rejected the hypothetical claim of Rs. 2 crore, and fixed the appropriate compensation at approximately Rs. 1 crore with interest. The Court also clarified that consumer forums have jurisdiction over medical negligence disputes under the Consumer Protection Act. The appeal by NIMS was dismissed and the appeal by the complainant was allowed, with costs awarded.

Issues considered

Whether the doctors were negligent in the pre‑operative, operative and post‑operative stages.
Whether implied consent for excision biopsy can be extended to consent for a more extensive surgery.
Whether the Consumer Protection Act, 1986 applies to medical negligence claims.
Whether the Consumer Redressal Commission had jurisdiction to adjudicate the dispute.
How quantum of compensation should be determined in medical negligence cases.

Legislation cited

Consumer Protection Act, 1986s. 14, s. 2(1)(d)(ii), s. 2(1)(o), s. 3

Subjects

medical negligenceconsumer protectioninformed consentcompensationhospital liabilityneurosurgeon involvementparaplegiaquantum of damagesmultiplier methodconsumer dispute redressal commission

Judgment

[2009] 9 S.C.R. 313
...>

NIZAM'S INSTITUTE OF MEDICAL SCIENCES A
v.
PRASANATH S. DHANANKA & ORS.
(Civil Appeal No. 4119 of 1999 etc.)
~
MAY 14, 2009
B
~ [B.N. AGRAWAL, HARJIT SINGH BEDI AND G.S.
SINGHVI, JJ.]

Negligence - Medical negligence - Compensation -
Twenty year old Engineering student - Operation conducted c
on - Resulting in acute paraplegia with complete loss of
control over the lower limbs - Complaint filed alleging
negligence before, during and after the operation - Claim of
.... compensation of about Rs. 4.61 crores - Consumer
Commission holding that there was negligence and deficiency D
of service before, during and after the operation and directing
compensation of Rs. 14 lakhs - On appeal, Claim of
compensation of Rs. 7.50 crores and seeking direction to
keep aside further 2 crores for use in future if some
developments beneficial to complainant in the medical field E
take place - Held: Attending doctors were remiss in their
~ conduct at pre-operative and at operative stage - However,
case of negligence at post-operative stage not made out -
,.. Once initial burden has been discharged by the complainant
by making out a case of negligence, the onus shifts onto the
F
hospital or attending doctors to prove lack of negligence -
Compensation of Rs. 1 crore would be appropriate - Claim
of Rs. 2 crores is hypothetical hence cannot be allowed - The
court has to strike a balance between inflated and
unreasonable demands of victim and the claim of opposite
~
' party negating its liability in its entirety - In a case of the G
present kind, use of multiplier method for determining
compensation is not proper - Compensation - Consumer
Protection - Deficiency in service.
313 H
314 SUPREME COURT REPORTS [2009] 9 S.C.R.

JO-.

A Respondent-complainant, a twenty year old student
of Engineering, visited the appellant-hospital for
examination of his ailment. An innocent tumor was
detected in X-ray. As several attempts at Fine Needle
Aspiration Cytology (FNAC) did not give any conclusive
t
B result, he was suggested excision biopsy. He was '
referred to a Cardio Thoracic Surgeon, who operated on ,...
him, for excision of the tumour. Immediately after the
surgery, the complainant developed acute paraplegia
with complete loss of control over the lower limbs and
c some other related complications. This led to his
prolonged hospitalization. He was discharged from the
hospital completely paralyzed. He , therefore, required
continuous physiotherapy and nursing care.

Respondent No. 1 filed a complaint before National
D Consumer Redressal Commission, alleging utter and j..

complete negligence on the part of the doctor who· had
operated on him. The negligence was alleged at three
stages i.e. before, during and after the operation. He made
a claim of Rs. 4,61,31,152/-. The appellant-hospital and the
E doctors denied the allegations. The State Government
also disowned any liability. The Commission held that
there was negligence and deficiency in service on the part )-
of the hospital at all stages of the case i.e. at pre-operative
stage, operative stage and post-operative stage.
F However, it negated complainant's plea that no consent '
for the excision of tumour had been taken, holding that
prior implied consent had been taken. The Commission
directed payment of compensation of Rs. 14 lakhs. It also .._
granted compensation of Rs. 1.5 lakhs to the parents of
G complainant. Hence these cross-appeals.
.....,;..
Disposing of the appeals, the Court

HELD: 1.1. The attending doctors were seriously
remiss in the conduct of the operation and it was on
H account of this negligence that the Paraplegia had set in. ,./;
...
l
, NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 315
PRASANATHS.DHANANKA
,.
They were also seriously remiss in not associating a A
neuro-surgeon at the pre-operative as well as at the stage
,. of the operation. [Paras 27 and 33] [357-A; 362-E-F]

1.2. Complete investigations prior to the actual
operation had not been carried out. The main plea of the 8
complainant is that the pre-operation examinations had
~ revealed a situation which required the intervention of a
Neuro Surgeon. The case of respondent-doctor however,
is that the involvement of the vertebral column had been
revealed only after the removal of the tumour. The
assertion of the doctor is incorrect. In the pre-operative
c
discharge record, dated 19th September 1990 ( Annexure
P-29) there is a reference to a mass lesion in the left upper
chest with erosion of ribs and vertebrae and no masses
... anywhere else. This document has to be read in
conjunction with Annexure P-27, a discharge record D
dated 19th May 1991 wherein it was specifically recorded
that during the operation a huge tumour had been
...., noticed in the left hemithorax with the second and third
ribs eroded and that the vertebral body was eroded and
..,,, the tumour mass along with extensions into chest wall E
and the fourth rib were all excised. These two documents
.... when read together belie the respondent-doctor's
statement in his cross-examination that the erosion had

-
-(
'
, been revealed for the first time after the tumour had been
removed. It is also clear from the document P-30, a letter
addressed.by the Director of the appellant-hospital to the
Director General, Military Hospital that after the removal
of the tumour, the intra spinal extension had been
F

--{ revealed. It has been the positive case of the complainant
that had an MRI or Myclography test been carried out, the G
~ possibility that the surgery was not required could have
been revealed. [Paras 12, 13 and 15] [337-F-H; 338-A-C;
339-A-B; 340-C]
f
"Diagnosis and Treatment Options for Neurofibromas"-
---------, H
-.
'
r
J

316 SUPREME COURT REPORTS (2009) 9 S.C.R. .;

·1-
A published by Robert R. Chase, M.D., Stephen Bosacco, M.D.,
Richard Levenberg, M.D.; "Principles of Surgery" Sixth Edition
by Seymour I. Schwartz, M.D.;"Chest Wall Tumours" in
"Glenn's Thoracic andCardiovascular Surgery" (Ed. Arthur E. r
'+--
Baue, et al), Sixth Edition, Volume -II, referred to.
B
1.3. It is evident from the cross-examination of the
complainant that no consent for the operation had been +-·
taken. Moreover, even though the record of the case had
been produced before the Commission, it was with some
reluctance and after several specific orders, but the
c written consent which had allegedly been taken is not a
part of the record. It is equally significant that in the ~
written submission~ which had been filed, a copy of the
consent form of appellant-hospital has been appended
but not the actual consent taken from the complainant. It
D must, therefore, be held that the withholding of the ,. "
aforesaid document raises a presumption against the
appellant-hospital and the attending Doctors. The
consent given by the complainant for the excision biopsy
cannot, by inference, be taken as an implied consent for
E a surgery (save in exceptional cases) [Para 17] (340-G-H; ~
341-A-B]

Samira Kohli vs. Dr. Prabha Manchanda and Anr. (2008)
...

-
2 sec 1, relied on. ".'_;
,
F 1.4. It is clear from the evidence in the instant case
that there was no urgency in the matter as the record . l

shows that discussions for the deferment of the
proposed excision biopsy had taken place between the
complainant, his parents and the doctor in the OPD and
G the, consent for the procedure had been obtained. Also,
, any implied consent for the excision of the tumour cannot
/ / be inferred. [Para 19] (344-F-G]
./
/

H
1. 5. Respondent-doctor's evidence shows a great
measure of negligence in the operation. In his affidavit,
----
\.
'
-"'"'t"
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 317
PRASANATHS.DHANANKA

he has stated that if it had been found that the tumour had A
penetrated into the spinal column, the patient would have
been referred to a Neuro Surgeon as well. This statement
itself when read with the incomplete diagnostic
procedures that had been adopted, show that had the
necessary tests been performed, the fact that the tumour 8
had penetrated into the vertebral column, would have
been revealed. The doctor further goes on to say that it
was not a case of interference with the spinal cord and
in justification he has stated that after operation of the
tumour had been removed a Neuro Surgeon had been
called in and on examination he had noticed onl}' a bony
c
erosion and no involvement of the spinal cord. This half-
baked diagnosis at the stage of the operation only after
the excision of the tumour does no credit to the Doctor.
It is also significant that the operation record shows that
D
the tumour mass had extended into the inter-vertebral
foramen and that there was an opening one cm in size in
the vertebral body exposing the spinal cord. In a case of
a tumour in the posterior mediastinal, the possibility of the
extension of the tumour into the foramen and the vertebral
column must be kept in mind and a Neuro Surgeon must E.
be associated with the diagnosis and the actual
operation. [Para 25] [349-G-H; 350-A-C; 355-C-D]

"Central Neurogenic Tumours of the Thoracis Region" by
Farid M. Shamji, M.D., FRCSC, Thomas R. Todd, MD, F
FRCSC, Eric Vallieres, MDFRCSC, Harold J. Sachs, MD
FRCSC, Brien G. Benoit, MD FRCSC; Article "The Principles
of Surgical Management in Dumbbell Tumours" by Yuksel M,
et al, Glenn's Thoracic. and Cardiovascular Surgery, Sixth
Edition, Volume II; Harrison's General Principles of Internal G
Medicine 11th Edition, Chapter 214 titled Diseases of the
Pleura, Mediastinum and Diaphragm, at pages 1127 and
1128, referred to.

~ 1.6. The Tribunal has also found that the complainant
H
318 SUPREME COURT REPORTS [2009] 9 S.C.R.

A had to undergo great agony and inconvenience for lack
of proper post operative medical care. No specific case
has been spelt out on this score and ·only general
observations, stemming from the complications arising
out of an operation gone wrong, have been made. [Para
B 34] [362-G-H]

1.7. In a case involving medical negligence, once the
initial burden has been discharged by the complainant by
ma.king out a case of negligence on the part of the
C hospital or the doctor concerned, the onus then shifts on
to the hospital or to the attending doctors and it is for the
hospital to satisfy the Court that there was no lack of care
or diligence. (Para 32] (361-H; 362-A-B]

Savita Garg (Smt.) vs. Director, National Heart Institute
D (2004) 8 SCC 56, relied on.

_ Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC
1; State of Punjab vs .. Shiv Ram and Ors. (2005) 7 SCC 1,
referred to.
E 2. It is not correct to say that in the face of
complicated questions of fact involving medical
procedures; it was inappropriate for the Commission to
have entered into the dispute and that the matter ought
to have been relegated to the civil court. It appears from
F the record that appellant did not, at any stage, seriously
challenge the propriety of the Commission going into the
dispute and even consented to the recording of the
evidence by the State Commission. The Appellant had
also made a request that a specialist from AllMS, New
G Delhi be called so that the question of negligence, if any,
could be properly investigated; but the deponent further
stated that he had no objection if the Commission did not
propose to follow this procedure. A similar option to name
some expert witness or witnesses was given to the
H
r
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 319
PRASANATHS.DHANANKA
).

complainant who, accordingly, on an application A
proposed the name of a doctor who was examined as a
witness. The record also reveals that after arguments had
been concluded and two weeks' time had been given to
the parties to file written submissions, an application had
been made to summon an expert witness from the AllMS. B
This application had been declined. Therefore, the
remarks against the procedure followed by the National
Commission are uncharitable and uncalled for. [Paras 28
and 31] [357-8; 361-8-F]

Dr. J.J. Merchant and Ors. vs. Shrinath Chaturvedi (2002)
c
6 SCC 635; Indian Medical Assn. vs. V.P.Shantha and Ors.
(1995) 6 sec 651, relied on.
3.1. As regards compensation a total sum of Rs. 15.5
Lakhs has been determined payable by the appellant. D
Before the Commission, the complainant assessed his
claim at a little over Rs. 4.61 crores. The complainant, is
now claiming about 7.50 Crores as compensation under
various heads. He has, in addition sought a direction that
a further sum of Rs. 2 crores be set aside to be used by E
him should some developments beneficial to him in the
medical field take place. Some of the claims are untenable
and are rejected. However, the claim with respect to some
of the other items need to be allowed or enhanced in view
of the peculiar facts of the case. [Paras 36 and 37) [363- F
E-G]

3.2. The complainant is gainfully employed as an IT
Engineer and as per his statement earning a sum of Rs.28
Lakh per annum though he is, as of today, about 40 years
of age. The very nature of his work requires him to travel G
to different locations but as he is confined to a wheel
chair he is unable to do so on his own. His need for a
driver cum attendant is, therefore, made out. The
complainant has worked out the compensation under this
( head presuming his working life to be upto the age of 65 H
320 SUPREME COURT REPORTS [2009] 9 S.C.R.

A years. As per the Court, a period of 30 years from the date
of the Award of the Commission i.e. 16th February, 1999,
rounded off to 1st March, 1999, would be a reasonable "'..
length of time. A sum of Rs.2,000/- per month for a period
of 30 years (rounded off from 1st of March 1999) needs
B to be capitalized. Accordingly a sum of Rs.7.2 Lakh is
awarded under this head. [Para 37] [363-G-H; 364-A-C)
+
3.3. The complainant has also sought a sum of
Rs.49,05,800/- towards nursing care etc. The amount as
claimed is excessive. Rs.4,000/- per month to the
c

..
appellant for a period of 30 years making a total sum of \
-)
Rs.14,40,000/- is granted under this head. [Para 37] [364-
C-E]

3.4. A Claim for a sum of Rs. 46 Lakhs towards
D physiotherapy etc. at the rate of Rs.4,000/- per month, is j_

reduced to Rs.3,000/- per month and award this amount
for a period of 30 years making a total sum of
Rs.10,80,000/- [Para 37) [364-E]

3.5. As some of the medical expenses that had been
E
incurred by the complainant have already been defrayed
by the employer of the complainant's father, the Court is
disinclined to grant any compensation for the medical ~
. I

expenses already incurred. However, keeping in view the
need for continuous medicare which would involve
F expensive medicines and other material, and the loss
towards future earnings etc., a lump sum payment of
Rs.25/-lakhs is directed under each of these two heads
making a total of Rs.50 lakhs. [Para 37] [364~E-G]

G 3.6. A payment of Rs.10 lakh is directed towards the
pain and suffering that the appellant has undergone. The
total amount thus computed would work out to
Rs.1,00,05,000 (Rs.1 crore 5 thousand) which is roun~ed
~
-
off to Rs. One Crore plus interest at 6% from 1st March, -
H E-1999 to the date of payment, giving due credit for any
~-
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 321
PRASANATHS.DHANANKA

compensation which might have already been paid. [Para A
37] [364-G-H; 365-A]

3.7. The claim for a sum of Rs.2 crore to be put in
,
.~ deposit to be utilized by him in case some developments
~-
in the medical field make it possible for him to under90
B
further treatment so as to improve his quality of life. Thjs
~ claim is unjustified and hypothetical and is declined.
.... [Para 38] [365-B]

3.8. The Court has to strike a balance between the
__.
.... inflated and unreasonable demands of a victim and the c
equally untenable claim of the opposite party saying that
nothing is payable. Sympathy for the victim does not, and
should not, come in the way of making a correct
assessment, but if a case is made out, the Court must not
~ be chary of awarding adequate compensation. The D
"adequate compensation" must to some extent, be a rule
of the thumb measure, and as a balance has to be struck,
it would be difficult to satisfy all the parties concerned. It
must also be borne in mind that life has its pitfalls and is
not smooth sailing all along the way as the hiccups that E
invariably come about cannot be visualized. [Para 39]
. ·1 [365-C-E]

3.9. It is often found that a person injured in an .
accident leaves his family in greater distress, vis-a-vis a
family in a case of death. In the latter case, the initial shock F
gives way to a feeling of resignation and acceptance, and
in time, compels the family to move on. The case of an
injured and disabled person is, however, more pitiable
and the feeling of hurt, helplessness, despair and often
. j
destitution enures every day. The support that is needed G•
by a severely handicapped person comes at an
enormous price, physical, financial and emotional, not
only on the victim but even more so on his family and
attendants and the stress saps their energy and destroys
their equanimity. [Para 39] [365-F-H; 366-A] H•
322 SUPREME COURT REPORTS [2009) 9 S.C.R.

A 3.10. The compensation has been computed keeping
in mind that his brilliant career has been cut short and
there is, as of now, no possibility of improvement in his
condition, the compensation will ensure a steady and
reasonable income to him for a time when he is unable
B to earn for himself. [Para 39) [366-A-B)

3.11. It is not correct to say that the proper method
for determining compensation would be the multiplier
method. The kind of damage that the complainant has
C suffered, the expenditure that he has incurred and is likely
to incur in the future and the possibility that his rise in
his chosen field would now be restricted, are matters
which cannot be taken care of under the multiplier
method. [Para 40) (366-C-D]
;..
D 3.12. The complainant's parents would be entitled to
the sum awarded to them by the Commission. [Para 41] .
...
(366-E]

Case Law Reference:
E (2oos) 2 sec 1 Relied on. Para 17
(2005) 6 sec 1 Referred to. Para 20 .,._

(2005) 1 sec 1 Referred to. Para 21

F (2002) 6 sec 635 Relied on. Para 29
(1995) 6 sec 651 Relied on. Para 30
(2004) s sec 56 Relied on. Para 32
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
G 4119 of 1999. .
' ...
From the Judgment -& Order dated 16.2.1999 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 124 of 1993.
H
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 323
PRASANATHS.DHANANKA
" WITH A

C.A. No. 3126 of 2000.
~"""'
Anil Kumar, Tandale, P. Niroop, Chandan Kumar and M.R.
Sheshadri for the appearing parties.
B

-
~

r
The Judgment of the Court was delivered by
~

HARJIT SINGH BEDI, J. 1. This judgment will dispose
of Civil Appeal No 4119 of 1999 and Civil Appeal No. 3126 of
2000 filed by the complainant, Prasanth S. Dhananka . The c

..
facts are as under :

2. The respondent Prasant S. Dhananka ( hereinafter
called the "complainant"), then 20 years of age and a student
of Engineering, complaining of recurring fever was examined
.;, in the hospital run by the Bharat Heavy Electricals Limited as D
his father was employed with that Organisation. As the cause
of the fever could not be identified, he visited the appellant -
Nizam Institute of Medical Sciences (NIMS) on 9th September,
1990 in the evening OPD. He was examined by one Dr. Ashish
_. Boghani, a Chest and Tuberculosis Specialist and was advised E
to undergo on ultrasound guided biopsy for Neurofibroma, an
. 1 innocent tumour, after an X-ray revealed a mass in the left
hemithorax with posterior mediastinal erosion of the left 2nd,
3rd and 4th ribs. As several attempts at Fine Needle Aspiration
Cytology (FNAC) under ultra sound guidance did not give any F
conclusive evidence as to the nature of the mass detected in
the X-ray examination, the complainant was referred (on 5th
October, 1990) for further examination to Dr. U.N. Das, who

..... ..
suggested another attempt at the same procedure but under
C.T. guidance. This test too did not show any lesion on which G
Dr. U.N. Das suggested that he undergo an excision biopsy.
and referred him to Dr. P.V. Satyanarayana, a Cardio Thoracic
Surgeon, who further advised him to report at the hospital on
16th October, 1990 for allotment of a room. The complainant

-
--~
was admitted to the hospital on 19th October, 1990 and the
H
(

\
324 SUPREME COURT REPORTS [2009] 9 S.C.R.

A operation was performed on 23rd October, 1990 and the
tumour was excised. It appears that immediately after the
surgery, the complainant developed acute paraplegia with a /
complete loss of control over the lower limbs, and some other
related complications, which led to prolonged hospitalization
s and he was ultimately discharged irom the hospital on 19th May,
1991 completely paralyzed with no change in his sensory
deficit. The discharge record also shows that the patient
required continuous physiotherapy and nursing care on account
of infection of the urinary tract and the development of bed-
C sores etc. It is the case of the complainant that after his
discharge from NIMS, he visited several other hospitals seeking
relief, but to no avail. On 11th May, 1991 the complainant's
father requested NIMS for a detailed report so that his son's
case could be discussed with experts from other developed
...
D countries· so as to improve his quality of life. No reply was,
however, forthcoming despite a reminder. Another letter dated
12th November 1991 also drew no response. Completely
frustrated, the complainant filed a complaint before the National
Consumer Redressal Commission (hereinafter referred to as
the "Commission") on 5th April, 1993 alleging utter and
E complete negligence on the part of Dr. P.V. Satyanarayana and
the other attending doctors and also making NIMS vicariously
liable and the State of Andhra Pradesh statutorily liable for the
negligence of the doctors concerned. Allegations was primarily
y
levelled against Dr. P.V. Satyanarayana for negligence before, \
·F during and after the operation. It was alleged that the medical
record did not indicate any immediate danger to the
complainant's life and health and that his father had pleaded
with the doctors that the operation be postponed till such time
he could complete his engineering degree course. It was further
G alleged that the doctors had not carried out the required pre-
operative tests which were available in NIMS itself and that the
complications which could possibly flow as the result of an
t
'
-
...
....'

excision biopsy had not been spelt out to the complainant prior
to the procedure. It was also submitted that operating on a
H neurofibroma or a schwannoma which had neurological
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 325
)<
?RASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

implications as well, warranted the involvement of a Neuro A
surgeon but no such opinion was sought before the surgery. It
was also pleaded that the consent that had been taken was only
for the purpose of an excision biopsy which was an exploratory

-- ~
procedure, but Dr. Satyanarayana had carried out a complete
excision removing the tumour mass and the fourth rib thereby
destroying the inter-costal blood vessels leading to paraplegia
B

and had a Neuro-surgeon been associated with the operation,
this problem could well have been avoided. The complainant
also alleged that negligence in post-operative treatment and
care had led to bedsores, severe pain, and high temperature c
and frequent and unnecessary exposure to X-rays which could
be a potential hazard later in life. He accordingly claimed
compensation as follows:

(A) SPECIAL DAMAGES (PECUNIARY)
D
1. Loss of future earnings Rs.89, 17,200
(Annexure XI)

2. Present burden of expenses Rs. 3,38,604**
[Annexures IV(a) to(d) ]
-i E
3. Damages on account of the Rs. 30,34,930
-t complainant by father, mother,
younger brother & maternal Uncle
II' [Annexures VII, VIII, IX &X]
F
4. Prospective burden of expenses Rs. 3,00,00,000
(Annexure-XI I)

...
____:::
B) GENERAL DAMAGES (NON PECUNIARY)

,. Pain and suffering, loss of amenities & Rs.38,30,000
#

Enjoyment of life & shortening of life Expectancy. G
(Annexures XIII, XIV, XV) - Rs.4,61,20,734

** (Later in his affidavit dated 5.2.94, this has been shown
as Rs.3,49,022 and the total claim as 4,61,31,152: the
"'·
H
326 SUPREME COURT REPORTS (2009] 9 S.C.R.

A present burden of expenses includes an amount of
Rs.1,27,644/- paid to OPI and Rs.91,002/- to other
hospitals).

3. On notice several replies were filed by the respondents.
8 NIMS, Respondent no.1 before the Commission, filed a reply
on behalf of respondent Nos. 2 to 5 and denied the allegations
in the complaint and pleaded that there had been no negligence.
Respondent No.6 before the Commission i.e. Chief Secretary
Andhra Pradesh Government, disowned any liability and
C pleaded that it had absolutely no concern with the m·auer.
Several pleas on merits were also taken by the respondents.

It was pleaded that the provisions of the Consumer
Protection Act could not be attracted and that the complaint had
been made after a lapse of one and half years and was,
D therefore, an afterthought. It was also pleaded that reasonable
care had been taken in the treatment by doctors who were
highly skilled in their specialties and in this view of the matter,
the claim for compensation and that too running into several
crores, was not justified. The respondents' then traversed the
E facts of the case and pleaded that though the initial examination
of the patient ruled out the presence of a lymphoma which was
a malignant condition, the possibility of an undetermined
malignancy within a large area in the left thorax had to be
examined as a ber.ign lesion was unlikely to cause prolonged -
F fever along with erosion of the left 2nd, 3rd and 4th ribs as
shown in the X-rays' and as a rapidly growing benign lesion
could also cause erosion of the ribs, a biopsy of the mass to
confirm the diagnosis was essential to plan the future course
of action. It was further pleaded that a history of fever for about
G 15 days prior to admission with loss of appetite and weight
suggested that whatever be the nature of the lesion, benign or
malignant, its presence was taking its toll on the general
condition of the patient which required some minimal tests. It
was also pointed out that as four attempts at FNAC had not
H yielded any conclusive pathological diagnosis, the next best
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 327
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

alternative was to go in for an excision biopsy by thoracotomy A
(an operation involving incising the wall of the thorax) which wqs
a test which could finally determine the nature of the mass. It
was, however, admitted that the complainant and his parents
had pleaded during discussions in the OPD for postponement
of the proposed excision biopsy to enable him to complete his 8
education but when it was explained to them that early
confirmation of the diagnosis to exclude the possibility of a
malignancy was essential, the parents had consented for the
surgery after they had been fully informed about all possible
risks and it had also been explained to them that after the body C
had been opened up, a small piece of the mass would be
immediately sent for histological examination and that any further
procedure would be based on the report received therefrom. It
was further pleaded that after the thoracotomy had been
performed, a part of the tumour had in fact been sent for a
biopsy and the report had been received soon thereafter that D
the mass was benign but it was nevertheless decided to excise
the entire tumour as the 4th rib had eroded and it had been
found essential to remove the 2nd and 3rd rib as well and for
this purpose some inter costal blood vessels had also been
sacrificed. It was also submitted in addition, that as tumours E
though initially benign can cause several medical complications
endangering the patient's life and can also turn malignant at a
later stage, it had been thought fit to remove the tumour along
with the involved ribs and that all care expected of doctors had
been taken and that it was only a cardiothoracic surgeon who F
had the skill to perform such a surgery and that the help of a
neuro surgeon had to be taken if the tumour had any intra spinal
extension and as in this particular case there was no such
extension, the presence of a neuro surgeon was not required.
It was finally pleaded that all investigations before the operation G
had been performed and full medical care had been provided
. to the complainant at the post-operative stage as well.

4. Affidavits were filed as evidence by the parties in support
of their pleadings. As the complainant was (and is) a severely H
..
328 SUPREME COURT REPORTS [2009] 9 S.C.R. ,.-
>(

A handicapped person and confined to a wheel-chair, the '
, I
Commission directed, on consent of both parties, that the .,
evidence be recorded by the President of the Andhra Pradesh
State Commission and the depositions thereafter transferred
to the Commission. In an affidavit dated June 1994 filed by
B NIMS a request was made to invite specialists from the All India . ' .~

Institute of Medical Sciences, New Delhi so that the question .
J-
of negligence, if any, could be properly investigated but the
affidavit also added that the deponent had no objection, if the
Commission did not propose to follow this procedure. The . ,I·
complainant too was directed to file an application if he wished
c to examine any expert medical witness in support of his pleas. Y==
An application was accordingly filed on 22nd August 1994 ,..----
proposing the name of Dr. A.S. Hegde, a Neurosurgeon; '"r
practicing in Bangalore and he was duly summoned and his .:..--
statement recorded by the President of the State Commission -4
D at Bangalore. On 19th September 1996, the counser for
respondent Nos. 1 to 5 undertook to produce the entire record
before the Commission but it was noticed on 25th April 1997
(when the case came up for hearing) that the record had not
been submitted. The Commission accordingly directed that the ~
E record be filed that very day. The case was finally heard on 4th '·
~
September 1998 and after arguments had been concluded, the
parties were given two weeks time to file written submissions.
The Commission declined (at this belated stage) to accept the
>-- -
prayer of some of the respondents made on 5th October 1998 l-
F ( i.e. after arguments had been concluded) to summon experts
from the AllMS as Court witnesses.

5. During the course of arguments before the Commission,
allegations pertaining to negligence at different stages, that is,
G before, during and after the operation, were raised. The main
contention of the complainant was that preMoperative diagnostic ~· ...
investigation had not been fully carried out and after four futile
attempts at needle biopsies had not given any conclusive result,
a C.T. Scan or an MRI by an experienced Radiologist would
have revealed the existence of the tumour and that in any case,

'"
H
'
... ;.
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
. PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
329

since Neurofibroma or Schwannoma tumours were basically A
neurological in nature, the complainant ought to have been
referred to a Neurophysician and if necessary to a
Neurosurgeon. The respondents, however, pleaded that the
investigations relating to biopsies were to be conducted by a
Radiologist and not by a Surgeon and that the complainant had B
been referred to a cardio - thoracic Surgeon as the tumour was
~
in the thorax and that further investigations by an MRI were not
necessary as sufficient information about the extent of the
tumour had already been revealed. On the basis of these broad
facts, the Commission went into the question as to whether the c
consent for the operation for the removal of the tumour had been
obtained from the complainant or his attendants. The
Commission observed that admittedly some discussion had
taken place between Dr. Satyanarayana and the complainant
)... and his parents about the possibility of deferring the operation D
till the completion of the complainant's education but after Dr.
Satyanarayana had explained the gravity of the situation to
them, they had impliedly given their consent for the operation.
The Commission then examined the question of negligence at
the stage of the operation itself on 23rd October, 1990 and
E
observed that the record of the case showed that there had
been erosion of the ribs and this had been confirmed during
~ , the operation which indicated that the tumour had spread into
the spinal area and as this required the intervention of a
Neurosurgeon, the neglect in associating one was clearly a case
F
of negligence. The Commission also noted that a
Neurosurgeon had, in fact, been called in though at a belated
stage. The Commission finally went into the question of
negligence at the post-operative stage and the plea of the
complainant that lack of care had led to bed sores, very high

- fever and other related complications, and rendered its opinion
on this aspect as well.
G

6. The Commission, in its order dated 16th February,
1999 concluded as under:
H
330 SUPREME COURT REPORTS [2009] 9 S.C.R.
..
_

A "From the aforesaid discussion, we are clear in our mind
that there was negligence and deficiency of service on the-
part of the OPs in the different stages of the case.

(i) OP 2 had stated that had he known pre-operatively
about the extension of the tumour into intervertebral
B
foramen, he as a CT surgeon would not have
chosen to deal with it and that on noticing vertebral
erosion while operating, he requested OP3 into the
theatre. Thus, according to OPs cases of vertebral
erosion and/or extension into intervertebral I

c foramen, warranted the performance of surgery by
the neurosurgeon along with the CT Surgeon.

(ii) There was information pre-operatively before both
OP4 and OP2 about vertebral erosion at T 4 level
D and affectation of vertebrae. On the basis of this A_

information alone, OP4 should have referred the
case to the neurosurgeon as well as to the CT
Surgeon; instead, he had referred only to the CT
Surgeon. When the case was referred to OP2 by
E OP4, OP2 should have himself discussed the case
with OP3, the neurosurgeon, who was also the
Director of the Institute at the relevant time, in view
~·
of the aforesaid clinical information, and the team
of OP2 and OP3 should have planned and
F performed the surgery. This, however, was not
done.

(iii) Not only did they fail to utilize the available pre-
operative clinical information, OP4 and OP2 also
failed to conduct necessary pre-operative
G diagnostic tests like MRI and myelogram which ~ •
would have provided the information pre-operatively
on the extension of the mass into intervertebral
foraman and which information would have even
according to OP2 brought the neurosurgeon as the
H prime surgeon. This failure on the part of OP4 and
~ NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 331
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

OP2 deprived the Complainant of the services of A
neurosurgeon in the entire surgery right from the
beginning.

(iv) After failing thus miserably in the pre-operative
stage, there was negligence in the operative stage
B
too. Although the surgery was admittedly to know
about the pathology of the tumour, almost the entire
tumour seems to have been excised before
knowing its pathology as a benign Schwannoma.
We had earlier noted that some Schwannoma form
dumbbell extensions through the inter-vertebral
c
foramen, and there is admission by OP2 that he
noticed extension into intervertebral foramen.
Although the practical significance of distribution of
nerves in Schwannoma which enabled its removal
without transaction of nerves was admitted, yet two D
inter-costal vessels were sacrificed in the surgery.

(v) We have already noted that the case records were
not produced by Ops until they were again directed
to do so through our Order dated 25.4.97. Thus, the E
medical expert who was examined in 1994 had
based his views on discharge summary, evening
special clinic record, pre-operative X-rays and CT
Scan reports, post-operative X-rays, CT Scan and
MRI. The case records containing the copy of F
discharge record which varied from the original
discharge record, the OPD morning clinical record,
the operation notes, the histopathology report were
submitted by the OPs only after April, 1997 and
these records contained vital information regarding
G
erosion of vertebra and extension of tumour into
intervertebral foramen etc. There is force in the
Complainant's allegation that there was
suppression of vital information and only half
information made available to the medical expert
H
332 SUPREME COURT REPORTS [2009) 9 S.C.R. I-
,,
A witness which allegation has not been rebutted by
the Ops. Thus. the medical witness's deposition is ··
to be deemed to have been based on incomplete
data.

(vi) It is also found that the operating surgeon OP2 and
B
the neurosurgeon OP3 who joined at the end of the
j.
surgery left the theatre without meetmg the anxious
parents waiting outside the operation theatre from
9 A.M. to 12.45 P.M. and without appraising them
about the removal of tumour and the rib, the
c pathological nature of the tumour for which purpose
the surgery was done etc. Tha parents came to
know from another attending doctor in the T.R.R. at
about 6 p.m., that day who reported that the
Complainant had come out of anaesthesia but that _...
D he has got paraplegic. It was left to the shell-
shocked father of the Complainant to collect OP2
and OP3 to know about the developments and the
condition of the patient; in effect, the parents could
meet these Ops only at about 10 P.M. that day. One
E gets the impression that had these Ops know known
about the onset of paraplegia in the operation
theatre itself as they contended, they could haye ~-
normally come out of the operation theatre, met the
parents and relatives and reported about the
F outcome of the surgery. It is difficult to brush aside
the feeling that as senior surgeons and faculty
members they would have not comprehended the
serious outcome of the operation which is perhaps
why they left without meeting the parents.
G
(vii) OP1 as an institution failed to carry out its statutory ~
function of exchanging opinion on the case with
sister institutions in India and abroad for post
operative management to retrieve the patient from
the damage to the extent possible.
H
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 333
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

In the light of aforesaid, we hold that there was negligence A
on the part of OP1, OP2, OP3,0P4 and OPS and
deficiency of service to the Complainant - patient. Since
OP6 is. already represented through OP1 (acc0rding to
notification establishing the institute), we do not consider
it necessary to bring OP6 separately under the purview of B
the Complainant. In the result, OP1 to OP5 are liable to
pay the compensation as determined hereunder. Since,
however, OP1 is the institution in which OP2 to OPS are
employed, we hold that OP1 is singularly responsible for
payment of compensation. In the written submissions filed c
after arguments were concluded, Ops have observed that
should the Commission decide to award any
compensation, they reserve the right of making further
observations. We are of the opinion that OPs were at
liberty to make whatever submissions they wanted to make
0
on the point of quantum of compensation during the
arguments stage itself; at that stage. Ops only stated that
the claim was exaggerated and ill founded. In their written
submissions, Ops have also informed that NIMS as
medical institution during the period in question is covered
by a medical insurance policy to a tune of Rs.10 lakhs for E
the period 2S.S.90 to 24.5.91 with the United India
Insurance Company, Hyderabad, -the maximum liability
being Rs.10 lakhs subject to one claim out of any one event
of Rs.5 lakhs.
F
The complainant has claimed compensation for i)
present burden of medical expenses, ii) prospective
burden of expenses, iii) loss of future earnings, iv) pain,
suffering, loss of amenities and enjoyment of life and
shortening of life expectancy and v) damages I G
compensation for father, mother, brother and maternal
uncle. The complainant claimed for medical expenses on
hospital and related charges; Complainant's father was an
employee of BHEL at the relevant time and these would
be reimbursed by them. We do not propose to interfere in H.
334 SUPREME COURT REPORTS [2009] 9 S.C.R.

A such an arrangement. Complainant has claimed for future
burden of expenses including physiotheraphy, nursing,
washer woman, aya etc. We feel that the items mentioned
under this category such as regular dressing material, bags
and tape for urine drainage, cotton rolls for defeacation,
B material for loin clean up and treatment, dressi~g. nursing
services including cleaning, giving bath, bed sores etc.
-.J-
physiotheraphy and extra nourishment are necessary and
allowable. The Complainant has estimated the future
burden of expenses for a period of 50 years. It may be
:C mentioned here that the neurosurgeon from Bombay, Dr.
Sangha!, a Specialist ip Spinal Cord who examined the
Complainant - patient, opined that the damage was severe
but that there was some chance of at least partial recovery
because the patient is young. Although the complainant's
D
parent mentioned there has been no iota of improvement, ,,..
yet there appears to be hope for some oetterment with a
proper rehabilitation plan. Regarding the compensation
claimed on account of loss of future earnings, we realize
that the incident has severely affected the career of the
complainant which, as seen from his academic record prior
E to the operation, would have been a good one otherwise.
We also perceive the anxiety, agony and distress of the
parents 'on the c9ndition of the Complainant consequent ~·

to the operation. It is stated in the complaint that the
Complainant's mother had to give up her teaching job in a
F school so as to look after the Complainant who is totally
bred-ridden and requires round the clock assistance and
attention. It has also been stated that Complainant's
brother was mentally upset which affected his performance
in his examination and resulted in securing admission in
G a college by paying huge fee. Further, the Complainant's
maternal uncle had to supplement the physical efforts of his
parents in attending on the complainant and also bring food
to the hospital even on curfew-bound days with great
difficulty. In short, the entire family was put in a disarray.
H •
. NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 335
I PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
;.
While determining the compensation to the A
Complainant as also to his parents, we have kept in view
the broad parameters followed by us in an earlier case of
medical negligence (Original Petition No.292 of 1994,
Harjot Ahluwalia (Minor) vs. Spring Meadows Hospital &
Anr.) { II (1997) CPJ 98 (NC)} which was upheld by the B
Hon'ble Supreme Court of India {Civil Appeal No.7708 of
1997 with Civil Appeal No.7858 of 1997 {I (1998) CPJ 1
(SC)}. The Apex Court in their judgment while upholding
our order have also dealt with the question of
compensation to be awarded in favour of the parents of c
the minor child for their acute mental agony and life long
care and attention on the minor child. In the aforesaid case
~ the Apex Court held that the parents of the child having
hired the services of the hospital, are also the consumers
within the meaning of section 2 (1)(d)(ii) and that they would
D
also be entitled to award of compensation due to
negligence of the Ops to the Complainant. A similar
situation has arisen in the case on hand where the
complainant had been given financial support by the
parents for hospitalization and associated expenses;
although an adult he has to be given physical support for E
a very long period by the parents in view of his physical
~ immobilization and sensory deficit consequent to the
surgery. As for the claim for the Complainant's brother and
maternal uncle, the same cannot be sustained, as they are
not covered by the definition of "Consumer" under the Act. F

We are of the view that the facts and circumstances
of the case justify (i) the award to the Complainant of an
amount of (a) Rs.8 lakhs (expected to yield a monthly
interest of about Rs.8,000/-) towards prospective charges G
~ for physiotheraphy, nursing and associated expenses, (b)
~
Rs.4 lakhs (expected to yield a monthly interest of about
Rs.4,000/-) for supplementing the complainant's future
earnings and (c) Rs.2 lakhs as compensation for his
.·- mental agony, physical suffering and pain and also for H
336 SUPREME COURT REPORTS (2009] 9 $.C.R.
~

A physiotheraphy, nursing and associated expenses already
incurred by him and ii) award of compensation of Rs.1.5
lakhs to the parents for their perpetual mental agony, stress
and depression and for the continued support, care and
attention they have to provide to the complainant and for
B the income loss of the mother due to dislocation in her job
to look after her son. We, therefore, direct OP1 to pay a
total compensation of Rs.14 lakhs to the complainant and J..
compensation of Rs.1.5 lakhs to the complainant's parents
jointly, within a period of 2 months from the date of r~c~ipts
c of this order failing which interest at the rate of 15 per cent
per annum shall become payable by OP1 until the date of
payment. We also impose costs of Rs.25,000/- on OP1.
<;;omplaint is allowed." .......
7. We may, at this stage observe, that the complainant's.
D plea that no consent for the e~cision of the tumour had been
taken was rejected hol~ing thi:lt prior 'implied' consent had
- indeed been taken.

8. Two appeals have been filed in this Court against the
E order of the Commission; Civil Appeal No.4119 of 1999 by
NIMS disowning any liability and Civil Appeal No.3126 of 2000
by the complainant Prasanth S. Dhananka asking for an
enhancement of the compensation. Both these matters are ~

being disposed of by this judgment.
F 9. Mr. Prasanth Dhanaka, the appellant in Civil Appeal No.
3126/2000 ancfthe respondent No.1 in C.A. No.4119/1999 has
supported the finding of the Commission on the question of
negligence, but has, in addition, challenged the observation of
the Commission that the implied consent of the complainant and
G his parents had been. taken for the e)(cision of the tumour. He
~
has, however, primarily pleaded that the compensation given
by the Commission was inadequate and not commensurate "'
with the damage and agony that he and his family had
undergone and which had .cut short the promising and lucrative
H career which lay ahead for him. ....
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 337
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.)

10. Mr. Anil Kumar Tandale, the learned counsel appearing A
for the NIMS, the appellant in C.A.No.4119/1999 has, however,
challenged the entire basis of the findings recorded by the
Commission both on the question of negligence and on the
quantum of compensation. It has been pleaded that all requisite
procedures had been adopted before, during and after the B
operation and in this view of the matter, there was no
negligence on the part of any doctor. He has also pleaded that
the quC\ntum of compensation claimed by the complainant on
the basis of the calculations submitted before this Court in the
form of a separate Paper Bqok was wholly unjustified, and that, c
if at all, any compensation had to be awarded, it had to be
under the multiplier method, a procedure which had been
... adopted in several decisions of this Court .

11. As the primary issue at this stage would be the
negligence or otherwise of the Doctors of NIMS we have D
extensively heard the parties on this question keeping in mind
that the present proceedings are in the nature of a first appeal
from the orders of the Commission. In this background, we
have examined the three issues raised before us (closely
interlinked as they are) under the three broad parameters E
adopted by the Commission, the alleged negligence before,
during and after the operation.

12. The first stage would be that of diagnosis. As already
observed above, we ·have carefully and independently evaluated F
the findings of negligence arrived at by the Commission. The
main plea of the complainant is that the pre-operation
examinations had revealed a situation which required the
intervention of a Neuro Surgeon. The case of Dr.
Satyanarayana, however, is that the involvement of the vertebral G
column had been revealed only after the removal of the tumour.
We find this assertion to be incorrect. It may be mentioned that
the operation had been performed on 23rd October 1990 but
in the pre-operative discharge record dated 19th September
1990 ( Annexure P-29) there is a reference to a mass lesion
H
338 SUPREME COURT REPORTS [2009] 9 S.C.R.

A in the left upper chest with erosion of ribs and vertebrae and
no masses anywhere else. This document has to be read in
conjunction with Annexure P-27, a discharge record dated 19th
May 1991 wherein it was specifically recorded that during the
operation on 23rd October 1990 a huge tumour had been
B noticed in the left hemithorax with the second and third ribs
eroded and that the vertebral body was eroded and the tumour
mass along with extensions into chest wall and the fourth rib )
)
were all excised. These two documents when read together
belie Dr. Satyanarayana's statement in his cross..:examination
c that the erosion had been revealed for the first time after the
tumour had been removed. It has been the positive case of the
complainant that had an MRI or Myclography test been carried '.
out, the possibility that the surgery was not required could have 1
been revealed. The complainant has referred us to an Article
D "Diagnosis and Treatment Options for Neurofibromas"- ~
published by Robert R. Chase, M.D., Stephen Bosacco, M.D.,
Richard Levenberg, M.D., three eminent Doctors in which it has'
been observed as under:

"Spinal neurofibromas may mimic intraspinal
E neoplasms. Dural ectasia creates bony changes,
including foraminal widening, vertebral body scalloping and
pedicle thinning. In addition, neurofibromas may be
associated with intrathoracic meningoceles,
spondylolosthesis, scoliosis, and kyphosis. On plain films,
F bony changes may be. evident, i.e. scalloping or
foraminal enlargement. Computerized axial imaging Will
reveal bony changes, in addition to the mass
representing the neurofibroma. MRI will provide further
delineation of the soft tissue and mass. Myclography can
G demonstrate the nerve roots or cord level in question."

13. Similar observations have been made in "Principles
of Surgery" Sixth Edition by Seymour I. Schwartz, M.D. in which
it has been observed that a MRI is a noninvasive diagnostic
modality, especially for vascular lesions and that in addition
H
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 339
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

Myclography may be required to confirm intraspinal findings. It A
is also clear from the document P-30, a letter addressed by
Doctor D. Raja Reddy, Director of NIMS to the Director General,
Military Hospital, Paraplegia Special Care Centre, Poona that
"the patient Mr. Prashant had plexiform Neurofibroma of the
Posterior Mediastinum with intra spinal extension. Following B
Mediastinal tumour excision he developed Paraplegia. I thought
he should benefit from the intensive Physiotherapy care that
your institute offers for such patients". Undoubtedly, it is clear
from thls document it transpires that after the removal of the
tumour, the intra spinal extension had been revealed but the c
complainant's seems to be correct in saying that had a MRI or
Myclography been performed, the intraspinal extension could
• well have been revealed at the pre-operative stage which could
have led to the intervention of a Neuro Surgeon at the time of
removal of the tumour and the paraplegia perhaps avoided.
D
14. Mr. Tandale has, however, in his written submissions,
raised additional pleas, (which had not been argued by him
during the course of the hearing), and has also referred us to
some texts which too had not been referred to by him. He has
submitted that the decision to recommend a thoractomy despite E
the fact that FNAC had not disclosed any lesion was only a
tentative opinion and not conclusive and that the final opinion
was only made available during the operation which had
revealed the extent of the tumour. The learned counsel has
placed reliance on Chapter 34 titled "Chest Wall Tumours" in F
"Glenn's Thoracic and Cardiovascular Surgery" (Ed. Arthur E.
Baue, et al), Sixth Edition, Volume -II, to submit that needle
biopsies could miss a Neurofibroma, so excisional biopsy (as
in this case) should be resorted to. The relevant passage reads
~~ G
"Neurofibromas can occur as an isolated lesion, but
usually these tumours are multiple and are associated with
von Recklinahausen's multiple neurofibromatosis. Although
most lesions are benign, malignant degeneration can
H
340 SUPREME COURT REPORTS [2009] 9 S.C.R.

A occur. When new symptoms appear - an enlarging mass
or paih - excision is recommended. Needie biopsy may
miss the significant spot, so excisional biopsy should be
done. When these tumours -0ccur near the vertebral
body, the presence of a "dumbbell" tumour with extension
B into the spinal canal must be documented by CT or M~I
scan. If present, neurological consultation is needed for ,,._
combined resection." (Emphasis supplied)

15. These observations do undoubtedly justify an excision
biopsy but equally support the case of the complainant
c inasmuch that his case too was that had an MRI been
performed, the extent of the tumour and its extension into the
spinal cord would have been revealed. We have, therefore, no
hesitation in holding that the complete investigations prior to
the acfual operation had not been carried out.
D .j...

16. Allied to this finding is the question as to whether the
required consent for the excision of the tumour had been taken
from the complainant or his parents. The Commission has
noted that some discussion between the complainant, his
E parents and Dr. Satyanarayana had taken place in the OPD
and the possibility of deferring the operation had been mooted
but notwithstanding this discussion, the complainant had been
~
admitted to hospital on the 19th October, 1990 and operated
upon on 23rd October 1990. The Commission has observed
F that as blood had been donated by the relatives of the
complainant, it was likely that they had the information that a
surgery was planned, as they were educated and enlightened
persons. The Commission has, accordingly, held on the basis
of the evidence of Dr. Satyanarayana "that once the consent
for excision biopsy through thoractomy was given, the consent
G for a moment (sic) (removal?) of the mass was implied."

17. We see from the cross examination of the complainant
that no consent for the operation had been taken. Moreover, it
is significant that even though the record of the case had been
H produced before the Commission, it was with some reluctance
,
'
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 341
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
~
1
,

and after several specific orders, but the written consent which A
had allegedly been taken is not a part of the record. It is equally
significant that in the written submissions which had been filed,
a copy of the consent form of NIMS has been appended but
not the actual consent taken from the complainant. It must,
-I therefore, be held that the withholding of the aforesaid document B
raises a presumption against the NIMS and the attending
-i
Doctors. We find that the consent given by the complainant for
the excision biopsy cannot, by inference, be taken as an
implied consent for a surgery (save in exceptional cases), as
held by this Court in Samira Kohli vs. Dr. Prabha Manchanda c
.._.. & Anr. (2008) 2 SCC 1. The two issues which are relevant for
our purpose and raised before the Bench were:

(i) Whether informed consent of a patient is necessary for
__, surgical procedure involving removal of reproductive
organs? If so, what is the nature of such consent? D
i
'
(ii) When a patient consults a medical practitioner, whether
consent given for diagnostic surgery can be construed as
consent for performing additional or further surgical
procedure - either as conservative treatment or as radical E
I

~ treatment - without the specific consent for such additional
--,.. or further surgery(
1

..... ,
These two questions were answered in the following terms:

"Consent in the context of a doctor-patient F
relationship, means the grant of permission by the patient
for an act to be carried out by the doctor, such as a
diagnostic, surgical or therapeutic procedure. Consent can
be implied in some circumstances from the action of the
patient. For example, when a patient enters a dentist's G
"' clinic and sits in the dental chair, his consent is implied
for examination, diagnosis and consultation. Except where
consent can be clearly and obviously implied, there
should be express consent. There is, however, a
.. significant difference in the nature of express consent of H
342 SUPREME COURT REPORTS [2009] 9 S.C.R.

A the patient, known as "real consent" in UK and as
"informed consent" in America. In UK, the elements of
consent are defined with reference to the patient and a
consent is considered to be valid and "real" when (i) the
patient gives it voluntarily without any coercion; (ii) the
B patient has the capacity and competence to give consent;
and (iii) the patient has the minimum of adequate level of
information about the nature of the procedure to which he
is consenting to. On the other hand, the concept of
"informed consent" developed by American courts, while
c retaining the basic requirements of consent, shifts the
emphasis on the doctor's duty to disclose the necessary
information to the patient to secure his consent. "Informed
consent" is defined in Taber's Cyclopedic Medical ....'
Dictionary thus:
D "Consent that is given by a person after receipt of
the following information: the nature and purpose
of the proposed procedure or treatment; the
expected outcome and the likelihood of success;
the risks; the alternatives to the procedure and
E supporting information regarding those
alternatives; and the effect of no treatment or .
procedure, including the effect on the prognosis
and the material risks associated with no
treatment. Also included are instructions
F concerning what should be done if the procedure
turns out to be harmful or unsuccessful."

The next question is whether in an action for negligence/
battery for performance of an unauthorized surgical
procedure, the doctor can put forth as defence the consent
G
given for a particular operative procedure, as consent for
any additional or further operative procedures performed
in the interests of the patient. In Murrary v. McMurchy
(1949) 2 DLR 442: (1949)1WWR989, the Supreme Court
of British Columbia, Canada, was considering a claim for
H
(

NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 343
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

battery by a patient who underwent a caesarean section. A
During the course of caesarean section, the doctor found
(
fibroid tumours in the patient's uterus. Being of the view
t that such tumours would be a danger in case of future
pregnancy, he performed a sterilization operation. The
Court upheld the claim for damages for battery. It held that B
sterilization could not be justified under the principles of
necessity, as there was no immediate threat or danger to
the patient's health or life and it would not have been
unreasonable to postpone the operation to secure the
patient's consent. The fact that the doctor found it c
convenient to perform the sterilization operation without
consent as the patient was already under general
anaesthesia, was held to be not a valid defence. A
somewhat similar view was expressed by the Court , of
Appeal in England in F., In re, (1933) 3DLR 260: 60 CCC
136. It was held that the additional or further treatment D
which can be given (outside the consented procedure)
should be confined to only such treatment as is necessary
to meet the emergency, and as such needs to be carried
out at once and before the patient is likely to be in _a E
position to make a decision for himself. Lord Goff

- observed (All ER p.566g-j)

"... Where, for example, a surgeon performs an operation
without his consent on a patient temporarily rendered
unconscious in an accident, he should do no more than is F
reasonably required, in the best interests of the patient,
before he recovers consciousness. I can see no practical
difficulty arising from this requirement, which derives from
the fact that the patient is expected before long to regain
consciousness and can then be consulted about longer G
term measures."

18. The Court also considered the possibility that had the
patient been conscious during surgery and in a position to give
his consent, he might have done so to avoid a second surgery
H
~

344 SUPREME COURT REPORTS [2009] 9 S.C.R.
~

A but observed that this was a non-issue as the patient's right to
d~cide whether he should undergo surgery was inviolable. This
is what the Court had to say:

"It is quite possible that had t,he patient been
conscious, and informed about the need for the additional
B
procedure, the patient might have agreed to it. It may be
that the additional procedure is beneficial and in the -t-
interests of the patient. It may be that postponement of the
additional procedure (say removal of, an organ) may
require another surgery, whereas removal of the affected
c organ during the initial diagnostic or exploratory surgery,
would save the patient from the pain and cost of a second
operation. Howsoever practical or convenient the reasons
may be, they are not relevant. What is relevant and of
importance is the inviolable nature of the patient's right in j.._
D regard to his body and his right to decide whether he
should undergo the particular treatment or surgery or not.
Therefore at the risk of repetition, we may add that unless >
the unauthorized additional or further procedure is
necessary in order to save the life or preserve the health
E of the patient and it would be unreasonable (as contrasted
from being merely inconvenient) to delay the further
procedure until the patient regains consciousness and t
takes a decision, a doctor cannot perform such procedure
without the consent of the patient."
F
19. It is clear from the evidence in the case before us that
there was no urgency in the matter as the record shows that
discussions for the deferment of the proposed excision biopsy
had taken place between the complainant, his parents and Dr.
Satyanarayana in the OPD and the consent for the procedure
G
had been obtained. Also in the light of the observations in the ~- ~

cited cases, any implied consent for the excision of the tumour
cannot be inferred. 5:
20. The broad principles und~r which medical negligence '·
i'
H as a tort have to be evaluated, have been laid down_ in the ,
- t
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v.
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

celebrated case of Jacob Mathew vs. State of Punjab & Anr.
(2005) 6 SCC 1. In this judgment, it has been observed that
345

A

the complexity of the human body, and the uncertainty involved
in medical procedures is of such great magnitude that it is
impossible for a doctor to guarantee a successful result and
the only assurance that he "can give or can be understood to B
-
I
.._ have given by implication is that he is possessed of the
requisite skill in that branch of profession which he is practicing
and while undertaking the performance of the task entrusted to
him he would be exercising his skill with reasonable
competence." The Bench also approved the opinion of c
McNair,J in (Bo/am v. Friern Hospital Management
Committee (1957) 2 All ER 118 (QBD), in the following words:

"[W]here you get a situation which involves the use of some
.J., special skill or competence, then the test as to whether
there has been negligence because has not got this D
special skill. The test is the standard of the ordinary skilled
man exercising and professing to have that special skill.
A man need not possess the highest expert skill ... It is
well-established law that it is sufficient if he exercises the
ordinary skill of an ordinary competent man exercising that E
particular art." (Charlesworth & Percy, ibid., para 8.02)
+
The Bench finally concluded its opinion as follows:

"We sum up our conclusions as under:
F
(1) Negligence is the breach of a duty caused 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 man would not do. The definition G
of negligence as given in Law of Torts, Ratanlal & Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove,
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 H
346 SUPREME COURT REPORTS [2009] 9 S.C.R.
1
•
A components of negligence are three: "duty", "breach" and
"resulting damage".

(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
B
particular a doctor, additional considerations apply. 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 negligence on
the part of a medical professional. So long as a doctor
c 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 a more skilled doctor
would not have chosen to follow or resort to that practice ~
D or procedure which the accused followed. 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 men has found to be sufficient; a failure to
use special or extraordinary precautions which might have
E prevented the particular happening cannot be the standard
for judging the alleged negligence. So also, the standard
of care, while assessing the practice as adopted, is judged -r
in the light of knowledge available at the time of the
incident, and not at the date of trial. Similarly, when the
F 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 particular time (that is,
the time of the incident) at which it is suggested it should
have been used.
G
(3) A professional may be held liable for negligence on one
of the 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 sta_ndard )

H
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 34 7
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

to be applied for judging, whether the person charged has A
been negligent or not, would be that of an ordinary
competent person exercising ordinary skill in that
profession. It is not possible for every professional to
possess the highest level of expertise or skills in that
branch which he practices. A highly skilled professional s
may be possessed of better qualities, but that cannot be
_._ made the basis or the yardstick for judging the
performance of the professional proceeded against on
~ndictment of negligence.

(4) The test for determining medical negligence as laid C
down in Bo/am case (1957) 2 All ER 118 (QBD)holds
good in its applicability in India.

21. The observations in the aforesaid case were reiterated
..1.. in State of Punjab vs. Shiv Ram & Ors. (2005) 7 SCC 1. In D
this case, a suit had been filed against State of Punjab and a
lady doctor, a State Government employee, claiming damages
for a failed tubectomy as the woman conceived and gave birth
to a child notwithstanding the procedure. The suit was decreed
against the State Government. This is what this Court had to E
say while allowing the appeal:

'The plaintiffs have not alleged that the lady surgeon
who performed the sterilization operation was not
competent to perform the surgery and yet ventured into
doing it. It is neither the case of the plaintiffs, nor has any F
finding been arrived at by any of the courts below that the
lady surgeon was negligent in performing the surgery. The
present one is not a case where the surgeon who
performed the surgery has committed breach of any duty
cast on her as a surgeon. The surgery was performed by · G
a technique known and recognized by medical science. It
is a pure and simple case of sterilization operation having
failed though duly performed. The learned Additional
Advocate General has also very fairly not disputed the
vicarious liability of the State, if only its employee doctor H
348 SUPREME COURT REPORTS [2009] 9 S.C.R.

A is found to have performed the surgery negligently and if
the unwanted pregnancy thereafter is attributable to such
negligent act or omission on the part of the employee
doctor of the State."

22. The Court further held forth a caution that if doctors
8
were frequently called upon to answer charges having criminal
and civil consequences, it would frustrate and render ineffective +
the functioning of the medical profession as a whole and if the
medical profession was "hemmed by threat of action, criminal
and civil,· the consequence will be a loss to the patients ........
c and no doctor would take a risk, a justifiable risk in the
circumstances of a given case, and try to save his patient from
a complicated disease or in the face of an unexpected prq~lem
that confronts him during the treatment or the surgery."

D 23. The evidence in the present case has to be evaluated >-
in the background of the above observations. It is clear that a
mere misjudgment or error in medical treatment by itself would
not -be decisive of negligence towards the patient and the
knowledge of medical practice and procedure available at the
E time of the operation and not at the date of trial, is relevant. It
is also evident that a doctor rendering treatment to a patient is
expected to have reasonable competence in his field. (Bolam's
principle). It is the case of the complainant that it is the lack of t
care and caution and the neglect on the part of the attending
doctors, and Dr. Satyanarayana in particular, to make the
F
necessary pre-operative investigations that had led to the
complications at the time of the operation and thereafter.

24. We now come to the allegation with regard to the
negligence shown at the stage of the operation itself. The record
G shows that the tumour 4x4 cm in dimension was located on the
left upper chest side of the thorax and there had been erosion
of the 2nd, 3rd and 4th ribs. The discharge record pertaining
to the operation also reveals that there was a one cm size
opening in the vertebral body exposing the spinal cord at the
H thorax level and that the tumour had been excised along with
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 349
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

the 4th rib. The record also shows that the tumour was not only A
confined to the thorax but had extended into the posterior
mediastinal column as well, showing that it had some
connection with the spinal cord. It is in this background that the
complainant has argued that whereas a cardio -thoracic
Surgeon was undoubtedly competent to perform the surgery for s
the excision of the tumour but as the tumour had extended into
"*· the posterior mediastinal column containing inter-costal blood
vessels and neNes, the involvement of a Neuro Surgeon was
essential and as this procedure had not been adopted a case
of negligence or indifference on the part of the attending doctors c
had been proved. It has also been highlighted time and again
that the information that the 2nd, 3rd and in particular 4th ribs
had eroded was available with the doctors long before the
operation and thus the fact the tumour had extended into the
mediastinal column was a clear possibility. In answer to the D
aforesaid allegations, it has been submitted that as the CT
scan and X-ray had shown a lesion in the thorax with the erosion
of the. ribs and as no involvement of the vertebral column had
been r~vealed, and further that the fact the tumour had
penetrated into the vertebral body had been noticed only after
E
the tumour mass had been excrsed, the involvement of a neuro
surgeon was not called for. In the written submissions filed on
-t behalf of Dr. Satyanarayana, it has been pointed out that when
it was noticed that there was some involvement of the vertebral
body, Professor I Dinaker a Consultant Neuro Surgeon had
been requested to join the operating team in the operation F
theatre and on examination he had found that no further
inteNention as per his speciality was required.

25. We have considered the opposing submissions very
carefully. It appears to us that Dr. Satyanarayana's evidence G
.. shows a great measure of negligence in the operation. In his
affidavit, he has stated that if it had been found that the tumour
had penetrated into the spinal column the patient would have
been referred to a Neuro Surgeon as well. To our mind, this
statement itself when read with the incomplete diagnostic H
350 SUPREME COURT REPORTS [2009] 9 S.C.R.

A procedures that had been adopted, show that had the
necessary tests been performed, the fact that the tumour had
penetrated into the vertebral column, would have been revealed.
Dr. Satyanarayana further goes on to say that it was not a case
of interference with the spinal cord and in justification he has
B stated that after operation of the tumour had been removed
Professor I. Dinaker, had been called in and on examination
he had noticed only a bony erosion and no involvement of the
spinal cord. We are of the opinion that this half-baked
diagnosis at the stage of the operation only after the excision
c of the tumour does no credit to the Doctor. It is also significant
that the operation record dated 23rd October, 1990 shows that
the tumour mass had extended into the inter-vertebral foramen
and that there was an opening one cm in size in the vertebral
body exposing the spinal cord. In this connection the
D complainant has placed reliance on an Article titled "Central
Neurogenic Tumours of the Thoracis Region" by Farid M.
Shamji, M.D., FRCSC, Thomas R. Todd, MD, FRCSC, Eric
Vallieres, MDFRCSC, Harold J. Sachs, MD FRCSC, Brien G.
Benoit, MD FRCSC. wherein it has been observed as under:

E "Thoracic neurogenic tumours differentiate from the
neuroepithelium that originates in the neural crest during
the development of the peripheral nervous system. Most
of the peripheral nervous tissue in the thorax is situated
in the posterior mediastinum in the paravertebral gutters.
F Consequently, this is the commonest location for the
majority of intrathoracic neurogenic tumours - at the site
of the sympathetic chain and in the path of the spinal and
intercostals nerves.

The histologic type of neurogenic tumour is less
G
important to the thoracic surgeon than the anatomical
relationship of the tumour to other posterior mediastinal
structures and, in particular, to the intervertebral foramen.
The possibility of intraspinal extension through the
fdramina is the single most important factor affecting
H
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 351
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

surgical intervention. A
We present our experience, albeit small, because
it outlines the importance of thorough anatomic
assessment of these tumours. It stresses the involvement
of the neurosurgeon in the assessment, decision making B
and surgical intervention."

and

"Patients with neurogenic tumours arising in the
thorax should undergo early surgical exploration and c
complete resection of the tumour if possible. Arising
within the confines of the narrow thoracic spinal canal or
the intervertebral foramen, these lesions may become
symptomatic quite early on, with spinal-cord
compression or segmental radicular pain caused by 0
early spinal-nerve involvement. Neurosurgical
consultation is a prerequisite for safe removal of these
tumours when the intervertebral fotamina are traversed.
Fortunately, most intrathoracic neurogenic tumours are
small, benign, unilateral, extrapleural. The diagnosis can E
often be established readily with current diagnostic
imaging techniques, and the tumour can be removed
safely with adequate exposure through a posterolateral
thoracotomy. When the thoracic surgeon suspects
• preoperatively that the tumour has an intraspinal
extension, the neurosurgeon should be consulted before F
exploration is considered. Indeed, in all patients who
have a lesion adjacent to the inter-vertebra/ foramen, a
neurosurgical consultation should be obtained. In these
circumstances, the patient's spinal cord is at considerable
risk of permanent damage from ill-advised surgical G
manoeuvres. The procedures that should not be
attempted without intraoperative assistance of a
neurosurgeon include enlarging the intervertebral
foramen (foraminectomy), application of undue traction
on the tumour during dissection, tamponading the H
352 SUPREME COURT REPORTS [2009] 9 S.C.R.

-1 ....
A bleeding vessels in the foramen when hemorrhage is
difficult to control and partial removal of the tumour.
Consequently, it is of utmost importance that all neurogenic lo.

tumours arising in the posterior location be studied very
carefully with special reference to the intervertebral
B forameh and possible intraspinal extension. The value of
computed tomography and magnetic resonance imaging
has been well established. Prior knowledge of a dumbbell ......
tumour or of a predominantly intrathoracic tumour with
foraminal extension dictates a combined thoracic-
c neurosurgical procedure. The approach consists of a
standard posteroloteral thoracotomy and laminectomy.
Dural defects should be closed meticulously to prevent the )-
development of a subarachnoid..,pleural fistula and possible ,,....._
meningitis.
D Controversy exists over the urgency of excising ..._

neurogenic tumours in the posterior mediastinum. Those
that are lateral to the costover~ebral gutter may be
managed conservately with surgery reserved for when
enlargement occurs. For the more centrally located
E tumours such as those presented here, we advise surgical
intervention for the following reasons:

An increase in the size of the tumour mass, which ·~

F
may increase the risk or difficulty of surgery from osseous
erosion or-intraspinal extension.
...
The possibility of malignancy must be taken into
account, realizing that most neurogenic tumours are benign
(overall rate of malignancy ranging from 3% to 19%).
Furthermore, the possibility of malignant degeneration
G should be borne in mind, and it is difficult to find exact data
on this point in the literature.
~

The risk of permanent damage to the spinal cord
from compression due to intraspinal tumour or intraspinal
H extension from an intrathoracic lesion. Nearly 10% of
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 353
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

neurogenic tumours of the posterior mediastinum extend A ·
into the spinal canal through the intervetebral foramen;
neurologic sumptoms indicating intraspinal extension
occur in about 60% of dumbbell tumours, therefore the
dual location should always be considered and defined
preoperatively. 8
Conclusions

Careful evaluation and surgical resection of benign
neurogenic tumours of the thorax result in a low morbidity
and excellent long-term results. Collaboration between C
thoracic surgeons and neurosurgeons is recommended.

--
t
For malignant lesions, if resection is incomplete, further
treatment in the form of radiotherapy or chemotherapy
should be instituted."
0
Likewise, in another Article "The Principles of Surgical
Management in Dumbbell Tumours" by Yuksel M, et al, it has
been stated:-

"METHODS: In all patients that have been operated
in our clinic during 1992-93, we preferred one stage E
removal described by Akwari that consists of posterior
laminectomy by neurosurgical team to free the tumour within
the spinal cord followed by a posterolateral thoracotomy
and excision of the tumour by thoracic surgeons in the
same setting. RESULTS: All three patients are alive and F
free of symptoms after 23, 16 and 13 months respectively.
According to the pathological examinations of the
specimens in the three patients, the exact diagnosis were
reported as neurofibroma, paraganglioma and
pheochromocytoma respectively. CONCLUSIONS: In G
recent reports, a combined surgical approach is
recommended for dumb-bell neurogenic tumours in
posterior mediastinum. We also recommend a combined
and one stage removal of dumb-bell neurogenic tumours
if possible. A team-work of thoracic af?d neurosurgepn will H
354 SUPREME COURT REPORTS [2009] 9 S.C.R.

A minimize the morbidity and mortality after the_ surgical
procedure, as well as giving the opportunity to remove
the tumour totally in one session,"

Likewise in "Dumbbell neurogenic tumours of the
mediastinum, Diagnosis and Management" by Akwari OE,
B ct al, it has been stated.:-

. "Among 706 collected cases of niediastinal
neurogenic tumous were 69 patients (9.8%) with extension
through an intervertebral foramen, so that the composite
c neoplastic mass was dumbbell-shaped. Although only 10%
of these dumbbell tumours were malignant, the majority of

-.
the patients presented with neurologic symptoms of spinal
cord compression. In about 40% of reported cases, the
intraspinal component, although present, was not
D clinically apparent. Such cases of asymptomatic
intraspinal extension should be suspected when special
roentgenologic views of the spine demonstrate erosion
of the vertebral pedicle or enlargement of the
intervertebral foramen adjancent to the posterior
E mediastinal mass. Workup of these patients should
include myelographic studies to determine whether a
dumbbell tumour is indeed present; if it is, surgery should
be carried out by a team of thoracic surgeons and
neurosurgeons in a one stage combined re,.section of
both the intraspinal and the mediastinal component of the
F
tumour. With early diagnosis and surgical intervention,
long term survival is the rule. When the patient is in the
pediatric age bracket, an orthopedic surgeon should be
included on the team to help minimize subsequent skeletal
growth deformity."
G
In "Combined Laminectomy and Thoracoscopic
Res·ection of Dumbell Neurofibrema: Technical Case
Report" by Citow is, et al, the authors have observed:-

"We describe combined laminectomy and
H.
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 355
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

thoracoscopic surgery for removal of a dumbbell thoracic A
spinal tumour to demonstrate the feasibility of such an
approach. CLINICAL PRESENTATION: We present the
case of a 29-year-old man who developed chest pain and
spinal cord compression from a thoracic dumbbell
neurofibroma. TECHNIQUE: Surgical approaches for B
benign neNe sheath tumours that extend from the spinal
cord into the thoracic cavity include combined laminectomy
and thoracotomy either in one or two stages, or a lateral
· extracavitary approach involving laminectomy, facetectomy,
and rib resection in a single stage. We performed a c
combination laminectomy and thoracoscopic tumour
resection in a single stage with good results."

A reading of all three texts pointedly refer to the fact that in
a case of a tumour in the posterior mediastinal, the possibility
of the extension of the tumour into the foramen and the vertebral D
column must be kept in mind and a neuro surgeon must be
associated with the diagnosis and the actual operation.

_ 26. Mr. Tandale, the learned counsel for the NIMS h_as,
however, raised certain issues before us in his written E
submissions. He has pointed out that a FNAC performed on a
neurofibroma was often indeterminate and an excision biopsy
was called for and this is precisely the procedure that had
planned on the crucial day. In this connection, he has relied on
several .texts including Glenn's Thoracic and Cardiovascular F
Surgery, Sixth Edition, Volume II (supra) and Harrison's General
Principles of Internal Medicine 11th Edition, Chapter 214 titl~d
Diseases of the Pleura, Mediastinum and Diaphragm, at pages
1127 and 1128 and in particular the following passages :

"Neurogenic tumors are the most common primary G
mediastinal neoplasms and are found almost exclusively
in the posterior mediatenum near the paravertebral gutter.
The majority of these tumours are benign, Neurofibromas,
Schwanomas, ganglionomas are the commonest tumors
see, (page 1128). H
356 SUPREME COURT REPORTS [2009] 9 S.C.R.

A The Mediastinum occupies the central portion of the
chest and is anatomically defined by the thoracic inlet
above the diaphragm below, the mediastinal pleura
laterally, the paravertebral gutter posteriorly, and the
sternum aneteiorly. Ti .e Mediastinum is divided into four
B compartments for descriptive purposes (fig.214-2). The
superior Mediastinum is bounded above by the plane of >--
the first rib and below by an imaginary line drawn
anterioposteriorly from the sternal angle to the lower edge
of the fourth thoracic vertebra. It contains the trachea,
c upper esophagus, thymus gland, thoracic duct, great veins,
arch of the aorta and its branches, and the phrenic, vagus,
and left recurrent laryngeal nerves. Below the superior
Mediastinum lie three further compartments. The anterior
Mediastinum contains fibroareolar tissue and lymph nodes,
but no major structures. The middle Mediastinum contains ;...
D
the heart, ascending aorta, great venis, pulmonary artery,
and pleuric nerves. The posterior Mediastinum contains
the esophagus, thoracic duct, descending aorta,
symphathetic chain, and intercostals and vagal nerves
(Page 1127).
E
27. He has also referred us to the cross examination of
Dr. A.S. Hegde, the expert witness examined at the instance t-
of the complainant that there was nothing wrong in the
procedure adopted by Dr. Satyanarayana even afte~ he had
F seen the tumour in the chest cavity. We are of the opinion that
the very portions that have been relied upon by Mr. Tandale in
fact support the argument that has been raised by the
complainant that the Neurofibromas which are Neurogenic
tumours were to be found exclusively in the posterior
G medi.astinal near the paravertebral gutter, and that the tumor
had extended into the vertebral column was therefore a
possibility. We also see from the statement of Dr. A.S. Hegde
that lschemic Myleopathy which had resulted in Paraplegia was
on account of the cutting off of the blood supply to the spinal
cord as a result of the operation to remove the tumor. The cross-
H
- '
....;
..
Nlzt,M'S INSTITUTE OF MEDICAL SCIENCES v.
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

examination of Dr. AS. Hegde, cannot therefore, be looked at
357

A
in isolation. It must, therefore, be concluded that the attending
,
--".
' doctors were seriously remiss in not associating a neuro-
surgeon at the pre-operative as well as at the stage of the
operation.
B
28. It has also been submitted that in the face of
J...
complicated questions of fact involving medical procedures, it
was inappropriate for the Commission to have entered into the
dispute and that the matter ought to have been relegated to the
civil court. Mr. Tandale in his written submissions has also
raised some pleas and levelled allegations which are wholly
c
uncalled for. We reproduce some of these herein under:-
: .
"As mentioned in the list of events above, after the
~
cross examination of the complainant and his father on
23rd and 24th May 1994, the affidavits of examination in D
chief of Dr.P.V. Satyanarayana and Dr. U.N.Das were filed
on 22.6.1994 about 7 years later, on 16.8.94, the National
Commission directed the complainant to file an application
for examination of expert medical witness. Thereafter
~ Dr.AS. Hegde was examined as PW3 on 23.12.94. , E

~ _., This sequence would be sufficient to indicate that the
National Commission had already reached a decision to
,i. award compensation to the complainant; hence it intended
to secure support to its already reached conclusions.
F
Such an approach is unheard of in judicial
adjudications. The complainant was represented by a
designated Senior Advocate as seen from the title page
of the judgment under appeal. The complainant therefore

.. 1
did not need any legal advice from the Commission. The
institute was denied equal and even treatment.
G

The cross examination of Dr.P.V. Satyanarayana
and Dr.U.N.Das was recorded on 20.05.1996, and
H
'•

358 SUPREME COURT REPORTS [2009] 9 S.C.R.
\
-f <-...:

A thereafter on 25.4.1997, the entire case record of
diagnostic, medial and surgical procedures pertaining to
the complainant was filed in the National Commission. The
arguments were heard on 4.9.1998 and written
submissions were filed by the Institute on 5.10.1998. .
"•,

B .._
While appreciating the evidence of Dr. P.V.
~
Satyanarayana and Dr.U.N.Das, the National Commission
has referred to (i) Gray's Anatomy, Angiology and
Neurology, (ii) Text Book of General Thoracic Surgery by
Thomas W. Shields 3rd Edition-page 1106, (iii) Annals of
,.
c '
Thoracic Surgery Vol. 1995 (59) Division of Thoracic &
Cardio-Vascular Surgery & Short Trauma Centre University
of Maryland, (iv) Complications of Intra Thoracic Surgery,
and (v) King & Smith: Contemporary Imaging Techniques
(632), (750-753). ),
...
D
The National Commission had taken recourse to
picking up sentences from the examination in chief as well
as of the cross examinations of Dr. P.V. Satyanarayan and
Dr.U.N.Das, and compared those fragmented portions with }'

the passages from the above text books and recorded '
E ' ,,
findings of negligence."
~
29. These submissions have absolutely no merit. This t-
Court in Dr. J.J.Merchant & Ors. Vs. Shrinath Chaturvedi ...
(2002) 6 sec 635 while dealing with the argument that the
F
matter should be relegated to the civil court observed:

"In the present case, there is inordinate delay of
about nine years in disposal of complaint. However, if this
contention raised by the learned counsel for the appellants

-
G is accepted, apart from the fact that it would be unjust, the
whole purpose ~md object of enacting the Consumer
Protection Act, 1986 (hereinafter referred to as "the Act")
would be frustrated. One of the main objects of the Act is
to provide speedy and simple redressal to consumer
H disputes and for that a quasi-judicial machinery is sought
~

NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 359
•· PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

to be set up at the district, State and Central level. These A
quasi-judicial bodies'are required to observe the principles
of natural justice and have been empowered to give relief
of a specific nature and to award, wherever appropriate,
compensation to consumers. Penalties for non-compliance
with the orders given by the quasi-judicial bodies have also B
..... been provided. The object and purpose of enacting the Act
is to render simple, inexpensive and speedy remedy to the
consumers with complaints against defective goods and
deficient services and the benevolent piece of legislation
intended to protect a large body of consumers from c
exploitation would be defeated. Prior to the Act,
consumers were required to approach the civil court for
securing justice for the wrong done to them and it is a
known fact that decision in a suit takes years. Under the
.. Act, consumers are provided with an alternative,
D
efficacious and speedy remedy. As such, the Consumer
:' Forum is an alternative forum established under the Act
to discharge the functions of a civil court. Therefore, delay
in disposal of the complaint would not be a ground for
rejecting the complaint and directing the complainant to
approach the civil court." E
-t
30. Mr. Tandale has, however, relied on Indian Medical
Assn. vs. V.P. Shantha & Ors. ( 1995) 6 SCC 651, and in
particular on the following observations:
F
It has been urged that proceedings involving negligence
in the matter of rendering services by a medical practitioner
would raise complicated questions requiring evidence of
experts to be recorded and that the procedure which is
..,. followed for determination of consumer disputes under the
i G
Act is summary in nature involving trial on the basis of
affidavits and is not suitable for determination of
complicated questions. It is no doubt true that sometimes
complicated questions requiring recording of evidence of
experts may arise in a complaint about deficiency in
H
\
I

I~
360 SUPREME COURT REPORTS [2009] 9 S.C.R.
"
A service based on the ground of negligence in rendering
medical services by a medical practitioner; but this would
not be so in all complaints about deficiency in rendering
...
,
i
I=
services by a medical practitioner. There may be cases

B
which do not raise such complicated questions and the
deficiency in service may be due to obvious faults which
t
(
~

can be easily established such as removal of the wrong ~
~
limb or the performance of an operation on the wrong
patient or giving injection of a drug to which the patient is
l
allergic without looking into the out patient card containing
c the warning (as in Chinkeow v. Government of Malaysia
(1967) 1 VVLR 813 P.C.) or use of wrong gas during the
course of an anesthetic or leaving inside the patient swabs
or other items of operating equipment after surgery. One i
often reads about such incidents in the newspapers. The
issues arising in the complaints in such cases can be ~-

D
speedily disposed of by the procedure that is being
followed by the Consumer Disputes Redressal Agencies I>-
and there is no reason why complaints regarding !'
i~
deficiency in service in such cases should not be
adjudicated by the Agencies under the Act. In complaints
E involving complicated issues requiring recording of
evidence of experts, the complainant can be asked to
approach the Civil Court for appropriate relief. Section 3
.
of the Act which prescribes that the provisions of the Act
shall be in addition to and not in derogation of the
F provisions of any other law for the time being in force, r-
preserves the right of the consumer to approach the Civil
I
Court for necessary relief. We are, therefore, unable to
hold that on the ground of composition of the Consumer
Disputes Redressal Agencies or on the ground of the
G procedure which is followed by the said Agencies lor ~

determining the issues arising before them, the service
t-
rendered by the medical practitioners arc not intended
to be included in the expression 'service' as defined in
Section 2(1)(o) of the Act.
H
(
t_
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 361
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]
¥

31. It has been argued that the present case was one A
which ought to be relegated to the civil court in view of the
above observations. We find that a bare reading of the
judgment in J.J. Merchant's case itself gives an answer to the
question posed. It is significant that the operation had been
performed on the 23rd October, 1990 and the complaint filed B
....,
on 9th April, 1993 and after arguments had been concluded on
4th September 1998 the decision had been rendered on 16th
February 1999; As a matter of fact, it appears from the record
that NIMS did not, at any stage, seriously challenge the
propriety of the Commission going into the dispute and even c
consented to the recording of the evidence by the State
Commission. It is even more significant that in an affidavit of
June 1994 filed on behalf of NIMS, a request had been made
that a specialist from AllMS, New Delhi be called so that the
.. question of negligence, if any, could be properly investigated,
D
but the deponent further stated that he had no objection if the
Commission did not propose to follow this procedure. A similar
option to name some expert witness or witnesses was given
to the complainant who, accordingly, on an application filed on
27th August, 1994 proposed the name of Dr. A.S. Hegde who
E
was examined as a witness. The record also reveals that after
arguments had been concluded on 4th September 1998 and
two weeks' time had been given to the parties tc:> file written
submissions, that an application had been made on 5th
October 1998 to summon an expert witness from the AllMS.
This application had been declined. We are, therefore, of the F
opinion that the remarks about the procedure followed by the
National Commission which have been quoted above, are to
say the least uncharitable and uncalled for. The judgment in
Indian Medical Association's case (supra), cited by Mr.
Tandale, primarily explains the concept of 'service' as defined G
under the Customer Protection Act and on the contrary, some
of the observations made therein support the complainant's
case all the way.

32. We are also cognizant of the fact that in a case H
362 SUPREME COURT REPORTS [2009] 9 S.C.R. ...
¥

A involving medical negligence, once the initial burden has been
discharged by the complainant by making out a case of
negligence on the part of the hospital or the doctor concerned,
the onus then shifts on to the hospital or to the attending doctors
and it is for the hospital to satisfy the Court that there was no
B lack of care or diligence. In Savita Garg (Smt.) vs. Director,
National Heart Institute (2004) 8 SCC 56 it has been observed ,..
as under:

"Once an allegation is made that the patient was admitted
in a particular hospital and evidence is produced to satisfy
c that he died because of lack of proper care and
negligence, then the burden lies on the hospital to justify
that there was no negligence on the part of the treating
doctor or hospital. Therefore, in any case, the hospital is
in a better position to disclose what care was taken or
D what medicine was administered to the patient. It is the ·-
duty of the hospital to satisfy that there was no lack of care
or diligence. The hospitals are institutions, people expect
better and efficient service, if the hospital fails to discharge
their duties through their doctors, being employed on job
E basis or employed on contract basis, it is the hospital
which has to justify and not impleading a particular doctor
will not ?bsolve the hospital of its responsibilities."

33. In the light of the above facts, we have no option but
F to hold that the attending doctors were seriously remiss in the
conduct of the operation and it was on account of this
negligence that the Paraplegia had set in. We accordingly
confirm the findings of the Commission on this score as well.

34. The Tribunal has also found that the complainant had
G to undergo great agony and inconvenience for lack of proper ~

post operative medical care. We, however, see that no specific
case has been spelt out on this score and only general
observations, stemming from the complications arising out of
an operation gone wrong, have been made. We need to say
H nothing more on this aspect.
NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 363
-, PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

35. The question of compensation which has been hotly A
debated and discussed during the course of arguments, now
needs to be dealt with. Before the Commission, the
complainant assessed his claim at a little over Rs.4.61 cores.
As already observed above, the Commission has thought it fit
to award compensation under the following heads: B

(a) Rs.8 lakh (expected to yield a monthly interest of
about Rs.8,000/-] towards prospective charges for
physiotherapy, nursing and associated expenses;

(b) Rs.4 lakh ( likewise expected to yield a monthly C
interest of about Rs.4,000/-) for supplementing the
complainant's future earnings, and

(c) Rs.2 lakh as compensation for mental agony,
physical suffering and pain and also for 0
physiotherapy, nursing and associated expenses
already incurred by him.

36. In addition, a sum of Rs.1.5 lakh has been given as
compensation to the complainant's parents for their agony,
stress and depression and the future care they may have to E
bestow on their son. A total sum of Rs.15.5 lakh has,
accordingly been determined payable by NIMS, the appellant
before us.

37. The complainant, who has argued his own case, has F
submitted written submissions now claiming about 7.50 Crores
as compensation under various heads. He has, in addition
sought a direction that a further sum of Rs. 2 crores be set aside
to be used by him should some developments beneficial to him
in the medical field take place. Some of the claims are G
untenable and we have no hesitation in rejecting them. We,
however, find that the claim with respect to some of the other
items need to be allowed or enhanced in view of the peculiar
facts of the case. Concededly, the complainant is a highly
qualified individual and is gainfully employed as an IT Engineer H
364 SUPREME COURT REPORTS [2009] 9 S.C.R.

A and as per his statement earning a sum of Rs.28 Lakh per
annum though he is, as of today, about 40 years of age. The
very nature of his work requires him to travel to different
locations but as he is confined to a wheel chair he is unable to
do so on his own. His need for a driver cum attendant is,
B therefore, made out. The complainant has worked out the
compensation under this head presuming his working life to be
)t
upto the age of 65 years. We feel that a period of 30 years from
the date of the Award of the Commission i.e. 16th February,
1999, rounded off to 1st March, 1999, would be a reasonable
c length of time. A sum of Rs.2,000/- per month for a period of
30 years (rounded off from 1st of March 1999) needs to be
capitalized. We, accordingly, award a sum of Rs.7.2 Lakh
under this head. The complainant has also sought a sum of
Rs.49,05,800/- towards nursing care etc. as he is unable to
perform even his daily ablutions without assistance. He has
0
computed this figure on the basis of the salary of a Nurse at
Rs. 4375/-per month for 600 months. We are of the opinion that
the amount as claimed is excessive. We, thus grant Rs.4,000/
- per month to the appellant for a period of 30 years making a
E total sum of Rs.14,40,000/-. The complainant has further sought
a sum of Rs.46 Lakhs towards physiotherapy etc. at the rate
of Rs.4,000/- per month. We reduce the claim from Rs.4,000/
- to Rs.3,000/- per month and award this amount for a period
of 30 years making a total sum of Rs.10,80,000/-At this stage,
it may be pointed out that some of the medical expenses that
F had been incurred by the complainant have already been
defrayed by the employer of the complainant's father and we
are, therefore, disinclined to grant any compensation for the
medical expenses already incurred. However, keeping in view
the need for continuous medical aid which would involve
G expensive medicines and other material, and the loss towards
future earnings etc., we direct a lump sum payment of Rs.25/-
lakhs under each of these two heads making a total of Rs.50
lakhs. In addition, we direct a payment of Rs.10 lakh towards
the pain and suffering that the appellant has undergone. The
H total amount thus computed would work out to Rs.1,00,05,000
'NIZAM'S INSTITUTE OF MEDICAL SCIENCES v. 365
PRASANATH S. DHANANKA [HARJIT SINGH BEDI, J.]

(Rs.1 crore 5 thousand) which is rounded off to Rs. One Crore A
plus interest at 6% from 1st March, 1999 to the date of payment,
giving due credit for any compensation which might have
already been paid.

38. The complainant has also claimed a sum of Rs.2 crore 8
to be put in deposit to be utilized by him in case some
developments in the medical field make it possible for him to
undergo further treatment so as to improve his quality of life.
This claim is unjustified and hypothetical and is declined.

39. We must emphasize that the Court has to strike a C
balance between the inflated and unreasonable demands of a
victim and the equally untenable claim of the opposite party
saying that nothing is payable. Sympathy for the victim does .
not, and should not, come in the way of making a correct
assessment, but if a case is made out, the Court must not be D
chary of awarding adequate compensation. The "adequate
compensation" that we speak of, must to some extent, be a rule
of the thumb measure, and as a balance has to be struck, it
would be difficult to satisfy all the parties concerned. It must also
be borne in mind that life has its pitfalls and is not smooth E
sailing all along the way (as a claimant would have us believe)
as the hiccups that invariably come about cannot be visualized.
Life it is said is akin to a ride on a roller coaster where a
meteoric rise is often followed by an equally spectacular fall,
and the distance between the two (as in this very case) is a F
minute or a yard. At the same time we ottert'find that a person
injured in an accident leaves his family in greater distress, vis-
a-vis a family in a case ofdeath. In the latter case, the initial
shock gives way to a feeling of resignation and acceptance,
and in time, compels the family to move on. The case of an G
injured and disabled person is, however, more pitiable and the
feeling of hurt, helplessness, despair and often destitution
enures every day. The support that is needed by a severely
handicapped person comes at an enormous price, physical,
financial and emotional, not only on the victim but even more
H
~

366 SUPREME COURT REPORTS [2009] 9 S.C.R.
(

A so on his family and attendants and the stress saps their energy '
and destroys their equanimity. We can also visualize the anxiety
of the complainant and his parents for the future after the latter,
as must all of us, inevitably fade away. We, have, therefore
computed the compensation keeping in mind that his brilliant
B career has been cut short and there is, as of now, no possibility
of improvement in his condition, the compensation will ensure
a steady and reasonable income to him for a time when he is x
unable to earn for himself.

c has, 40. Mr. Tandale, the learned counsel for the respondent
further, submitted that the proper method for determining
compensation would be the multiplier method. We find
absolutely no merit in this plea. The kina of damage that the
complainant has suffered, the expenditure that he has incurred
and is likely to incur in the future and the possibility that his rise
D in his chosen field would now be restricted, are matters which
cannot be taken care of under the multiplier method.
•
41. Civil appeal No.3126 of 2000 is allowed in the above
term with costs of Rs.50,000/-. It is also clarified that the
E complainant parents would be entitled to the sum awarded to
them by the Commission. CA No.4119 of 1999 is dismissed.

42. Before we end, a word of appreciation for the
complainant who, assisted by his father, had argued his matter.
We must record that though a sense of deep injury was
F discernible throughout his protracted submissions made while
confined to a wheel-chair, he remained unruffled and with
behaved quiet dignity, pleaded his case bereft of any rancour
or invective for those who, in his perception, had harmed him.

G 43. As the complainant is severely handicapped and has
appeared in person, we direct that a copy of this judgment be _
sent to his address, free of cost, under registered cover.

K.K.T. Appeals disposed of.