T09D

KPMSOL NMIMS CLINICAL MOOT COURT 2024

IN THE HON’BLE MAHARASHTRA MEDICAL COUNCIL

IN THE MATTER OF

MR. FARAD KHAN……………………………………………..COMPLAINANT

Vs.

DR. PRITAM PRASANNA……………………………………..DEFENDANT

COMPENDIUM FOR THE DEFENDANT

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 TABLE OF CONTENTS

Serial Page
No. AUTHORITIES No.
1 Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 03
2 Indian Contract Act 1872 23
National Medical commission registered medical practitioners ( Professional conduct)
3 regulations 2002 35
4 Achutrao Haribhau Khodwa vs State of Maharashtra (1996) 2 SCC 634 55
Bombay Hospital & Medical Research Centre v. Asha Jaiswal & Ors. 2021 SCC Online SC
5 1149 66
Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal 2019
6 SCC OnLine 1459 101
Consumer Protection Council and Others vs. Dr. M. Sundaram and Another 2019 SCC OnLine
7 SC 1459 105
8 Hunter vs Hanley 1955 SLT 213 111
9 Jacob Mathew vs state of Punjab AIR 2005 SUPREME COURT 3180 120
10 Kimmell v. Skelly 130 Cal. 555 141
11 Knox v. Modern Garage & Repair Shop 68 Cal. App. 583 145
12 L’Estrange v F Graucob Ltd [1934] 2 KB 394 148
13 Martin F D’Souza Vs. Mohd. Ishfaq AIR 2009 SUPREME COURT 2049 162
14 Moni vs State Of Kerala 2006(2)KLT313 194
15 Roe and Woolley v. Minister of Health (1954) 2 QB 66 242
16 Sethuraman Subramaniam Iyer v Triveni Nursing Home 1998 CCJ 1532 (NC 270
17 State Of Haryana & Ors vs Raj Rani AIR 2005 SUPREME COURT 3279 274
18 STATEMENT OF VERIFICATION 276

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 INDIAN MEDICAL COUNCIL

(Professional Conduct, Etiquette and Ethics)

Regulations, 2002

(AMENDED UPTO 8th OCTOBER 2016)

MEDICAL COUNCIL OF INDIA

Pocket-14, Sector 8, Dwarka
New Delhi - 110077

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 Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002
(Published in Part III, Section 4 of the Gazette of India, dated 6th April, 2002)

MEDICAL COUNCIL OF INDIA

NOTIFICATION

New Delhi, dated 11th March, 2002

No. MCI-211(2)/2001/Registration. In exercise of the powers conferred under section 20A read
with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956), the Medical Council of
India, with the previous approval of the Central Government, hereby makes the following
regulations relating to the Professional Conduct, Etiquette and Ethics for registered medical
practitioners, namely:-

Short Title and Commencement: (1) These Regulations may be called the Indian Medical
Council (Professional conduct, Etiquette and Ethics) Regulations, 2002. (2)They shall come into
force on the date of their publication in the Official Gazette.

CHAPTER I

1. CODE OF MEDICAL ETHICS

A. Declaration: Each applicant, at the time of making an application for registration under the
provisions of the Act, shall be provided a copy of the declaration and shall submit a duly signed
Declaration as provided in Appendix 1. The applicant shall also certify that he/she had read and
agreed to abide by the same.

B. Duties and responsibilities of the Physician in general:

1.1 Character of Physician (Doctors with qualification of MBBS or MBBS with post graduate
degree/ diploma or with equivalent qualification in any medical discipline):

1.1.1 A physician shall uphold the dignity and honour of his profession.

1.1.2 The prime object of the medical profession is to render service to humanity; reward or
financial gain is a subordinate consideration. Who- so-ever chooses his profession, assumes the
obligation to conduct himself in accordance with its ideals. A physician should be an upright
man, instructed in the art of healings. He shall keep himself pure in character and be diligent in
caring for the sick; he should be modest, sober, patient, prompt in discharging his duty without
anxiety; conducting himself with propriety in his profession and in all the actions of his life.

1.1.3 No person other than a doctor having qualification recognised by Medical Council of India
and registered with Medical Council of India/State Medical Council (s) is allowed to practice
Modern system of Medicine or Surgery. A person obtaining qualification in any other system of
Medicine is not allowed to practice Modern system of Medicine in any form.

1.2 Maintaining good medical practice:

1.2.1 The Principal objective of the medical profession is to render service to humanity with full
respect for the dignity of profession and man. Physicians should merit the confidence of patients
entrusted to their care, rendering to each a full measure of service and devotion. Physicians should
try continuously to improve medical knowledge and skills and should make available to their
patients and colleagues the benefits of their professional attainments. The physician should
practice methods of healing founded on scientific basis and should not associate professionally
with anyone who violates this principle. The honoured ideals of the medical profession imply that
the responsibilities of the physician extend not only to individuals but also to society.

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1.2.2 Membership in Medical Society: For the advancement of his profession, a physician should
affiliate with associations and societies of allopathic medical professions and involve actively in
the functioning of such bodies.

1.2.3 A Physician should participate in professional meetings as part of Continuing Medical

Education programmes, for at least 30 hours every five years, organized by reputed professional
academic bodies or any other authorized organisations. The compliance of this requirement
shall be informed regularly to Medical Council of India or the State Medical Councils as the case
may be.

1.3 Maintenance of medical records:

1.3.1 Every physician shall maintain the medical records pertaining to his / her indoor patients
for a period of 3 years from the date of commencement of the treatment in a standard proforma
laid down by the Medical Council of India and attached as Appendix 3.

1.3.2. If any request is made for medical records either by the patients / authorised attendant or
legal authorities involved, the same may be duly acknowledged and documents shall be issued
within the period of 72 hours.

1.3.3 A Registered medical practitioner shall maintain a Register of Medical Certificates giving full
details of certificates issued. When issuing a medical certificate he / she shall always enter the
identification marks of the patient and keep a copy of the certificate. He / She shall not omitto
record the signature and/or thumb mark, address and at least one identification mark of the patient
on the medical certificates or report. The medical certificate shall be prepared as in Appendix 2.

1.3.4 Efforts shall be made to computerize medical records for quick retrieval.

1.4 Display of registration numbers:

1.4.1 Every physician shall display the registration number accorded to him by the State Medical
Council / Medical Council of India in his clinic and in all his prescriptions, certificates, money
receipts given to his patients.

1.4.2 Physicians shall display as suffix to their names only recognized medical degrees or such
certificates/diplomas and memberships/honours which confer professional knowledge or
recognizes any exemplary qualification/achievements.

1.5 Use of Generic names of drugs: Every physician should, as far as possible, prescribe drugs
with generic names and he / she shall ensure that there is a rational prescription and useof drugs.

The above Clause – 1.5 is substituted in terms of Notification published in

the Gazette of India on 08.10.2016 as under.

“Every physician should prescribe drugs with generic names legibly and
preferably in capital letters and he/she shall ensure that there is a rational
prescription and use of drugs”

1.6 Highest Quality Assurance in patient care: Every physician should aid in safeguarding the
profession against admission to it of those who are deficient in moral character or education.
Physician shall not employ in connection with his professional practice any attendant who is neither
registered nor enlisted under the Medical Acts in force and shall not permit such persons to attend,
treat or perform operations upon patients wherever professional discretion or skill is required.

1.7 Exposure of Unethical Conduct: A Physician should expose, without fear or favour,
incompetent or corrupt, dishonest or unethical conduct on the part of members of the profession.

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1.8 Payment of Professional Services: The physician, engaged in the practice of medicine shall
give priority to the interests of patients. The personal financial interests of a physician should not
conflict with the medical interests of patients. A physician should announce his fees before
rendering service and not after the operation or treatment is under way. Remuneration received
for such services should be in the form and amount specifically announced to the patient at the
time the service is rendered. It is unethical to enter into a contract of "no cure no payment".
Physician rendering service on behalf of the state shall refrain from anticipating or accepting any
consideration.

1.9 Evasion of Legal Restrictions: The physician shall observe the laws of the country in
regulating the practice of medicine and shall also not assist others to evade such laws. He should
be cooperative in observance and enforcement of sanitary laws and regulations in the interest of
public health. A physician should observe the provisions of the State Acts like Drugs and
Cosmetics Act, 1940; Pharmacy Act, 1948; Narcotic Drugs and Psychotropic substancesAct,
1985; Medical Termination of Pregnancy Act, 1971; Transplantation of Human Organ Act, 1994;
Mental Health Act, 1987; Environmental Protection Act, 1986; Pre–natal Sex Determination Test
Act, 1994; Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954; Persons with
Disabilities (Equal Opportunities and Full Participation) Act, 1995 and Bio- Medical Waste
(Management and Handling) Rules, 1998 and such other Acts, Rules, Regulations made by the
Central/State Governments or local Administrative Bodies or any other relevant Act relating to the
protection and promotion of public health.

CHAPTER 2

2. DUTIES OF PHYSICIANS TO THEIR PATIENTS

2.1 Obligations to the Sick

2.1.1 Though a physician is not bound to treat each and every person asking his services, he
should not only be ever ready to respond to the calls of the sick and the injured, but should be
mindful of the high character of his mission and the responsibility he discharges in the course of
his professional duties. In his treatment, he should never forget that the health and the lives of
those entrusted to his care depend on his skill and attention. A physician should endeavour to add
to the comfort of the sick by making his visits at the hour indicated to the patients. A physician
advising a patient to seek service of another physician is acceptable, however, in case of
emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a
patient. However for good reason, when a patient is suffering from an ailment which is not within
the range of experience of the treating physician, the physician may refuse treatment and refer the
patient to another physician.

2.1.2 Medical practitioner having any incapacity detrimental to the patient or which can affect his
performance vis-à-vis the patient is not permitted to practice his profession

2.2 Patience, Delicacy and Secrecy : Patience and delicacy should characterize the physician.
Confidences concerning individual or domestic life entrusted by patients to a physician and defects
in the disposition or character of patients observed during medical attendance should never be
revealed unless their revelation is required by the laws of the State. Sometimes, however, a
physician must determine whether his duty to society requires him to employ knowledge, obtained
through confidence as a physician, to protect a healthy person against a communicable disease
to which he is about to be exposed. In such instance, the physician should act as he would wish
another to act toward one of his own family in like circumstances.

2.3 Prognosis: The physician should neither exaggerate nor minimize the gravity of a patient’s
condition. He should ensure himself that the patient, his relatives or his responsible friends have
such knowledge of the patient’s condition as will serve the best interests of the patient and the
family.

2.4 The Patient must not be neglected: A physician is free to choose whom he will serve. He
should, however, respond to any request for his assistance in an emergency. Once having
undertaken a case, the physician should not neglect the patient, nor should he withdraw from
the case without giving adequate notice to the patient and his family. Provisionally or fully

6
registered medical practitioner shall not willfully commit an act of negligence that may deprive
his patient or patients from necessary medical care.

2.5 Engagement for an Obstetric case: When a physician who has been engaged to attend an
obstetric case is absent and another is sent for and delivery accomplished, the acting physician
is entitled to his professional fees, but should secure the patient’s consent to resign on the arrival
of the physician engaged.

CHAPTER 3

3. DUTIES OF PHYSICIAN IN CONSULTATION

3.1 Unnecessary consultations should be avoided:

3.1.1 However in case of serious illness and in doubtful or difficult conditions, the physician should
request consultation, but under any circumstances such consultation should be justifiable and in
the interest of the patient only and not for any other consideration.

3.1.2 Consulting pathologists /radiologists or asking for any other diagnostic Lab investigation
should be done judiciously and not in a routine manner.

3.2 Consultation for Patient’s Benefit: In every consultation, the benefit to the patient is of
foremost importance. All physicians engaged in the case should be frank with the patient and his
attendants.

3.3 Punctuality in Consultation: Utmost punctuality should be observed by a physician in

making themselves available for consultations.

3.4 Statement to Patient after Consultation:

3.4.1 All statements to the patient or his representatives should take place in the presence of the
consulting physicians, except as otherwise agreed. The disclosure of the opinion to the patient
or his relatives or friends shall rest with the medical attendant.

3.4.2 Differences of opinion should not be divulged unnecessarily but when there is irreconcilable
difference of opinion the circumstances should be frankly and impartially explained to the patient
or his relatives or friends. It would be opened to them to seek further advice as they so desire.

3.5 Treatment after Consultation: No decision should restrain the attending physician from
making such subsequent variations in the treatment if any unexpected change occurs, but at the
next consultation, reasons for the variations should be discussed/ explained. The same privilege,
with its obligations, belongs to the consultant when sent for in an emergency duringthe absence
of attending physician. The attending physician may prescribe medicine at any time for the patient,
whereas the consultant may prescribe only in case of emergency or as an expert when called for.

3.6 Patients Referred to Specialists: When a patient is referred to a specialist by the attending
physician, a case summary of the patient should be given to the specialist, who should
communicate his opinion in writing to the attending physician.

3.7 Fees and other charges:

3.7.1 A physician shall clearly display his fees and other charges on the board of his chamber
and/or the hospitals he is visiting. Prescription should also make clear if the Physician himself
dispensed any medicine.

3.7.2 A physician shall write his name and designation in full along with registration particulars in
his prescription letter head.

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Note: In Government hospital where the patient–load is heavy, the name of the prescribing
doctor must be written below his/her signature.

CHAPTER 4

4. RESPONSIBILITIES OF PHYSICIANS TO EACH OTHER

4.1 Dependence of Physicians on each other : A physician should consider it as a pleasure and
privilege to render gratuitous service to all physicians and their immediate family dependants.

4.2 Conduct in consultation : In consultations, no insincerity, rivalry or envy should be indulged

in. All due respect should be observed towards the physician in-charge of the case and no
statement or remark be made, which would impair the confidence reposed in him. For this purpose
no discussion should be carried on in the presence of the patient or his representatives.

4.3 Consultant not to take charge of the case: When a physician has been called for
consultation, the Consultant should normally not take charge of the case, especially on the
solicitation of the patient or friends. The Consultant shall not criticize the referring physician. He /
she shall discuss the diagnosis treatment plan with the referring physician.

4.4 Appointment of Substitute: Whenever a physician requests another physician to attend his
patients during his temporary absence from his practice, professional courtesy requires the
acceptance of such appointment only when he has the capacity to discharge the additional
responsibility along with his / her other duties. The physician acting under such an appointment
should give the utmost consideration to the interests and reputation of the absent physician and
all such patients should be restored to the care of the latter upon his/her return.

4.5 Visiting another Physician’s Case: When it becomes the duty of a physician occupying an
official position to see and report upon an illness or injury, he should communicate to the physician
in attendance so as to give him an option of being present. The medical officer / physician
occupying an official position should avoid remarks upon the diagnosis or the treatment that has
been adopted.

CHAPTER 5

5 DUTIES OF PHYSICIAN TO THE PUBLIC AND TO THE PARAMEDICAL PROFESSION

5.1 Physicians as Citizens: Physicians, as good citizens, possessed of special training should
disseminate advice on public health issues. They should play their part in enforcing the laws of the
community and in sustaining the institutions that advance the interests of humanity. They should
particularly co-operate with the authorities in the administration of sanitary/public health laws and
regulations.

5.2 Public and Community Health: Physicians, especially those engaged in public health work,
should enlighten the public concerning quarantine regulations and measures for the prevention
of epidemic and communicable diseases. At all times the physician should notify the constituted
public health authorities of every case of communicable disease under his care, in accordance
with the laws, rules and regulations of the health authorities. When an epidemic occurs a physician
should not abandon his duty for fear of contracting the disease himself.

5.3 Pharmacists / Nurses: Physicians should recognize and promote the practice of different
paramedical services such as, pharmacy and nursing as professions and should seek their
cooperation wherever required.

CHAPTER 6

6. UNETHICAL ACTS : A physician shall not aid or abet or commit any of the following acts
which shall be construed as unethical -

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6.1 Advertising:

6.1.1 Soliciting of patients directly or indirectly, by a physician, by a group of physicians or by

institutions or organisations is unethical. A physician shall not make use of him / her (or his / her
name) as subject of any form or manner of advertising or publicity through any mode either alone
or in conjunction with others which is of such a character as to invite attention to him or to his
professional position, skill, qualification, achievements, attainments, specialities, appointments,
associations, affiliations or honours and/or of such character as would ordinarily result in his self
aggrandizement. A physician shall not give to any person, whether for compensation or otherwise,
any approval, recommendation, endorsement, certificate, report or statement with respect of any
drug, medicine, nostrum remedy, surgical, or therapeutic article, apparatus or appliance or any
commercial product or article with respect of any property, quality or use thereof or any test,
demonstration or trial thereof, for use in connection with his name, signature, or photograph in any
form or manner of advertising through any mode nor shall he boast of cases, operations, cures or
remedies or permit the publication of report thereof through any mode. A medical practitioner is
however permitted to make a formal announcement in press regarding the following:
(1) On starting practice.
(2) On change of type of practice.
(3) On changing address.
(4) On temporary absence from duty.
(5) On resumption of another practice.
(6) On succeeding to another practice.
(7) Public declaration of charges.

6.1.2 Printing of self photograph, or any such material of publicity in the letter head or on sign
board of the consulting room or any such clinical establishment shall be regarded as acts of self
advertisement and unethical conduct on the part of the physician. However, printing of sketches,
diagrams, picture of human system shall not be treated as unethical.

6.2 Patent and Copy rights: A physician may patent surgical instruments, appliances and
medicine or Copyright applications, methods and procedures. However, it shall be unethical if
the benefits of such patents or copyrights are not made available in situations where the interest
of large population is involved.

6.3 Running an open shop (Dispensing of Drugs and Appliances by Physicians): - A

physician should not run an open shop for sale of medicine for dispensing prescriptions prescribed
by doctors other than himself or for sale of medical or surgical appliances. It is not unethical for a
physician to prescribe or supply drugs, remedies or appliances as long as there is no exploitation
of the patient. Drugs prescribed by a physician or brought from the market for a patient should
explicitly state the proprietary formulae as well as generic name of the drug.

6.4 Rebates and Commission:

6.4.1 A physician shall not give, solicit, or receive nor shall he offer to give solicit or receive, any
gift, gratuity, commission or bonus in consideration of or return for the referring, recommending
or procuring of any patient for medical, surgical or other treatment. A physician shall not directly or
indirectly, participate in or be a party to act of division, transference, assignment, subordination,
rebating, splitting or refunding of any fee for medical, surgical or other treatment.

6.4.2 Provisions of para 6.4.1 shall apply with equal force to the referring, recommending or
procuring by a physician or any person, specimen or material for diagnostic purposes or other
study / work. Nothing in this section, however, shall prohibit payment of salaries by a qualified
physician to other duly qualified person rendering medical care under his supervision.

6.5 Secret Remedies: The prescribing or dispensing by a physician of secret remedial agents of
which he does not know the composition, or the manufacture or promotion of their use is unethical
and as such prohibited. All the drugs prescribed by a physician should always carry a proprietary
formula and clear name.

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6.6 Human Rights: The physician shall not aid or abet torture nor shall he be a party to either
infliction of mental or physical trauma or concealment of torture inflicted by some other person or
agency in clear violation of human rights.

6.7 Euthanasia: Practicing euthanasia shall constitute unethical conduct. However on specific
occasion, the question of withdrawing supporting devices to sustain cardio-pulmonary function
even after brain death, shall be decided only by a team of doctors and not merely by the treating
physician alone. A team of doctors shall declare withdrawal of support system. Such team shall
consist of the doctor in charge of the patient, Chief Medical Officer / Medical Officer in charge of
the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in
accordance with the provisions of the Transplantation of Human Organ Act, 1994.

The Clause No. 6.8, as under, is included in terms of Notification published on

14.12.2009 in Gazette of India .

“6.8 Code of conduct for doctors and professional association of doctors in their
relationship with pharmaceutical and allied health sector industry.

6.8.1 In dealing with Pharmaceutical and allied health sector industry, a medical
practitioner shall follow and adhere to the stipulations given below:-

a) Gifts: A medical practitioner shall not receive any gift from any pharmaceutical
or allied health care industry and their sales people or representatives.

b) Travel facilities: A medical practitioner shall not accept any travel facility inside
the country or outside, including rail, air, ship , cruise tickets, paid vacations etc.
from any pharmaceutical or allied healthcare industry or their representatives for self
and family members for vacation or for attending conferences, seminars, workshops,
CME programme etc as a delegate.

c) Hospitality: A medical practitioner shall not accept individually any hospitality

like hotel accommodation for self and family members under any pretext.

d) Cash or monetary grants: A medical practitioner shall not receive any cash or
monetary grants from any pharmaceutical and allied healthcare industry for
individual purpose in individual capacity under any pretext. Funding for medical
research, study etc. can only be received through approved institutions by
modalities laid down by law / rules / guidelines adopted by such approved
institutions, in a transparent manner. It shall always be fully disclosed.

e) Medical Research: A medical practitioner may carry out, participate in, work in
research projects funded by pharmaceutical and allied healthcare industries. A
medical practitioner is obliged to know that the fulfillment of the following items (i)
to (vii) will be an imperative for undertaking any research assignment / project funded
by industry – for being proper and ethical. Thus, in accepting such a position a
medical practitioner shall:-

(i) Ensure that the particular research proposal(s) has the due permission from the
competent concerned authorities.

(ii) Ensure that such a research project(s) has the clearance of national/ state /
institutional ethics committees / bodies.

(iii) Ensure that it fulfils all the legal requirements prescribed for medical research.

(iv) Ensure that the source and amount of funding is publicly disclosed at the
beginning itself.

(v) Ensure that proper care and facilities are provided to human volunteers, if they
are necessary for the research project(s).

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 (vi) Ensure that undue animal experimentations are not done and when these are
necessary they are done in a scientific and a humane way.

(vii) Ensure that while accepting such an assignment a medical practitioner shall
have the freedom to publish the results of the research in the greater interest of the
society by inserting such a clause in the MoU or any other document / agreement for
any such assignment.

f) Maintaining Professional Autonomy: In dealing with pharmaceutical and allied

healthcare industry a medical practitioner shall always ensure that there shallnever
be any compromise either with his / her own professional autonomy and / or with the
autonomy and freedom of the medical institution.

g) Affiliation: A medical practitioner may work for pharmaceutical and allied

healthcare industries in advisory capacities, as consultants, as researchers, as
treating doctors or in any other professional capacity. In doing so, a medical
practitioner shall always:

(i) Ensure that his professional integrity and freedom are maintained.
(ii) Ensure that patients interest are not compromised in any way.
(iii) Ensure that such affiliations are within the law.
(iv) Ensure that such affiliations / employments are fully transparent and disclosed.

h) Endorsement: A medical practitioner shall not endorse any drug or product of the
industry publically. Any study conducted on the efficacy or otherwise of such
products shall be presented to and / or through appropriate scientific bodies or
published in appropriate scientific journals in a proper way”.

The title of Section 6.8 shall be further amended by deleting the words "and
professional association of doctors" in terms of Notification published on 01.02.2016 in
Gazette of India as under:-

“6.8 Code of conduct for doctors in their relationship with pharmaceutical and allied
health sector industry"

The Section 6.8.1(b) shall be substituted in terms of Notification published on

01.02.2016 in Gazette of India, as under:-

(b) Travel Facilities : A medical practitioner shall not accept any travel Facility inside the
country or outside, including rail, road, air, ship, cruise tickets, paid vacation, etc. from any
pharmaceutical or allied healthcare industry or their representatives for self and family
members for vacation or for attending conferences, seminars, workshops, CME Programme,
etc. as a delegate.

(iii) Action to be taken by the Council for violation of Section 6.8, as amended vide notification
dated 10/12/2009, shall be prescribed by further amending the Section 6.8.1 as under:-

SECTION ACTION

6.8.1 In dealing with Pharmaceutical and

allied health sector industry, a medical
practitioner shall follow and adhere to the
stipulations given below:-

a) Gifts: A medical practitioner shall not Gifts more than Rs. 1,000/- upto Rs. 5,000/-
receive any gift from any pharmaceutical : Censure
or allied health care industry and their
sales people or representatives. Gifts more than Rs. 5,000/- upto Rs.
10,000/-: Removal from Indian Medical
Register or State Medical Register for 3

11
 (three) months.

Gifts more than Rs. 10,000/- to Rs. 50,000/-

: Removal from Indian Medical Register or
State Medical Register for 6(six) months.

Gifts more than Rs. 50,000/- to Rs.

1,00,000/- : Removal from Indian Medical
Register or State Medical Register for 1 (one)
year.

Gifts more than Rs. 1,00,000/-: Removal for

a period of more than 1 (one) year from Indian
Medical Register or State Medical Register.

b) Travel facilities: A medical practitioner Expenses for travel facilities more than Rs.
shall not accept any travel facility inside 1,000/- upto Rs. 5,000/-: Censure
the country or outside, including rail,
road, air, ship, cruise tickets, paid Expenses for travel facilities more than Rs.
vacations etc. from any pharmaceutical 5,000/- upto Rs. 10,000/-: Removal from
or allied healthcare industry or their Indian Medical Register or State Medical
representatives for self and family
Register for 3 (three) months.
members for vacation or for attending
conferences, seminars, workshops, Expenses for travel facilities more than Rs.
CME programme etc. as a delegate.
10,000/- to Rs. 50,000/-: Removal fromIndian
Medical Register or State medical Register for
6 (six) months.

Expenses for travel facilities more than

more than Rs. 50,000/- to Rs. 1,00,000/-:
Removal from Indian Medical Register or
State Medical Register for 1 (one) year.

Expenses for travel facilities more than Rs.

1,00,000/-: Removal for a period of more than
1 (one) year from Indian MedicalRegister or
State Medical Register.

c) Hospitality: A medical practitioner shall Expenses for Hospitality more than Rs.
not accept individually any hospitality 1,000/- upto Rs. 5,000/-: Censure
like hotel accommodation for self and
family members under any pretext. Expenses for Hospitality more than Rs.
5,000/- upto Rs. 10,000/-: Removal from
Indian Medical Register or State Medical
Register for 3 (three) months.

Expenses for Hospitality more than Rs.

10,000/- to Rs. 50,000/-: Removal fromIndian
Medical Register or State medical Register for
6 (six) months.

Expenses for Hospitality more than more

than Rs. 50,000/- to Rs. 1,00,000/: Removal
from Indian Medical Register or State Medical
Register for 1 (one) year.

Expenses for Hospitality more than Rs.

1,00,000/-: Removal for a period of more

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 than 1 (one) year from Indian Medical
Register or State Medical Register.

d) Cash or monetary grants:- A medical Cash or monetary grants more than Rs.
practitioner shall not receive any cash 1,000/- upto Rs. 5,000/-: Censure
or monetary grants from any
pharmaceutical and allied healthcare Cash or monetary grants more than Rs.
industry for individual purpose in 5,000/- upto Rs. 10,000/-: Removal from
individual capacity under any pretext. Indian Medical Register or State Medical
Funding for medical research, study etc.
Register for 3 (three) months.
can only be received through approved
institutions by modalities laid down by Cash or monetary grants more than Rs.
law / rules / guidelines adopted by such
10,000/- to Rs. 50,000/-: Removal fromIndian
approved institutions, in a transparent
manner. It shall always be fully Medical Register or State Medical Register for
disclosed. 6 (six) months.

Cash or monetary grants more than more

than Rs. 50,000/- to Rs. 1,00,000/-: Removal
from Indian Medical Register or State Medical
Register for 1 (one) year.

Cash or monetary grants more than Rs.

1,00,000/-: Removal for a period of more than
1 (one) year from Indian MedicalRegister or
State Medical Register.

e) Medical Research: A medical First time censure, and thereafter removal of

practitioner may carry out, participate in, name from Indian Medical Register or State
work in research projects funded by Medical Register for a period depending upon
pharmaceutical and allied healthcare
the violation of the clause.
industries. A medical practitioner is
obliged to know that the fulfillment of the
following items (i) to (vii) will be an
imperative for undertaking any research
assignment/project funded by industry –
for being proper and ethical. Thus, in
accepting such a position a medical
practitioner shall :-

(i) Ensure that the particular research

proposal(s) has the due permission
from the competent concerned
authorities.

(ii) Ensure that such a research

project(s) has the clearance of
national/state/institutional ethics
committees/bodies.
(iii) Ensure that it fulfils all the legal
requirements prescribed for
medical research.

(iv) Ensure that the source and amount

of funding is publicly disclosed at
the beginning itself.

(v) Ensure that proper care and facilities

are provided to human volunteers, if
they are necessary
for the research project(s).

13
(vi) Ensure that undue animal
experimentations are not done and
when these are necessary they are
done in a scientific and a humane
way.

(vii) Ensure that while accepting such

an assignment a medical
practitioner shall have the freedom
to publish the results of the research
in the greater interest of the society
by inserting such a clause in the
MoU or any other
documents/agreement for anysuch
assignment.

f) Maintaining Professional First time censure, and thereafter removal of

Autonomy :- In dealing with name from Indian Medical Register or State
pharmaceutical and allied healthcare Medical Register.
industry a medical practitioner shall
always ensure that there shall never
be any compromise either with
his/her own professional autonomy
and/or with the autonomy and
freedom of the medical institution.

g) Affiliation:- A medical practitioner First time censure, and thereafter removal of

may work for pharmaceutical and name from Indian Medical Register or State
allied healthcare industries in Medical Register for a period depending upon
advisory capacities, as consultants,
the violaton of the clause.
as researchers, as treating doctors
or in any other professional capacity.
In doing so, a medical practitioner
shall always :-

(i) Ensure that his professional integrity

and freedom are maintained.

(ii) Ensure that patients interest are not

compromised in any way.

(iii) Ensure that such affiliations are

within the law.

(iv) Ensure that such affiliations/

employments are fully transparent
and disclosed.

h) Endorsement:- A medical First time censure, and thereafter removal of

practitioner shall not endorse any name from Indian Medical Register or State
drug or product of the industry Medical Register.
publically. Any study conducted on
the efficacy or otherwise of such
products shall be presented to and/or
through appropriate scientific
bodies or published in appropriate
scientific journals in a proper way.

14
 CHAPTER 7

7. MISCONDUCT : The following acts of commission or omission on the part of a physician shall
constitute professional misconduct rendering him/her liable for disciplinary action

7.1 Violation of the Regulations: If he/she commits any violation of these Regulations.

7.2 If he/she does not maintain the medical records of his/her indoor patients for a period of
three years as per regulation 1.3 and refuses to provide the same within 72 hours when the patient
or his/her authorised representative makes a request for it as per the regulation 1.3.2.

7.3 If he/she does not display the registration number accorded to him/her by the State Medical
Council or the Medical Council of India in his clinic, prescriptions and certificates etc. issued by
him or violates the provisions of regulation 1.4.2.

7.4 Adultery or Improper Conduct: Abuse of professional position by committing adultery or

improper conduct with a patient or by maintaining an improper association with a patient will render
a Physician liable for disciplinary action as provided under the Indian Medical CouncilAct, 1956
or the concerned State Medical Council Act.

7.5 Conviction by Court of Law: Conviction by a Court of Law for offences involving moral
turpitude / Criminal acts.

7.6 Sex Determination Tests: On no account sex determination test shall be undertaken with
the intent to terminate the life of a female foetus developing in her mother’s womb, unless there
are other absolute indications for termination of pregnancy as specified in the Medical Termination
of Pregnancy Act, 1971. Any act of termination of pregnancy of normal female foetus amounting
to female foeticide shall be regarded as professional misconduct on the part of the physician
leading to penal erasure besides rendering him liable to criminal proceedings as per the provisions
of this Act.

7.7 Signing Professional Certificates, Reports and other Documents: Registered medical
practitioners are in certain cases bound by law to give, or may from time to time be called upon
or requested to give certificates, notification, reports and other documents of similar character
signed by them in their professional capacity for subsequent use in the courts or for administrative
purposes etc. Such documents, among others, include the ones given at Appendix –4. Any
registered practitioner who is shown to have signed or given under his name and authority any
such certificate, notification, report or document of a similar character which is untrue, misleading
or improper, is liable to have his name deleted from the Register.

7.8 A registered medical practitioner shall not contravene the provisions of the Drugs and
Cosmetics Act and regulations made there under. Accordingly,

a) Prescribing steroids/ psychotropic drugs when there is no absolute medical

indication;
b) Selling Schedule ‘H’ & ‘L’ drugs and poisons to the public except to his patient;
in contravention of the above provisions shall constitute gross professional
misconduct on the part of the physician.

7.9 Performing or enabling unqualified person to perform an abortion or any illegal operation for
which there is no medical, surgical or psychological indication.

7.10 A registered medical practitioner shall not issue certificates of efficiency in modern medicine
to unqualified or non-medical person.

(Note: The foregoing does not restrict the proper training and instruction of bonafide
students, midwives, dispensers, surgical attendants, or skilled mechanical and technical
assistants and therapy assistants under the personal supervision of physicians.)

7.11 A physician should not contribute to the lay press articles and give interviews regarding
diseases and treatments which may have the effect of advertising himself or soliciting practices;
but is open to write to the lay press under his own name on matters of public health, hygienic

15
living or to deliver public lectures, give talks on the radio/TV/internet chat for the same purpose
and send announcement of the same to lay press.

7.12 An institution run by a physician for a particular purpose such as a maternity home, nursing
home, private hospital, rehabilitation centre or any type of training institution etc. may be advertised
in the lay press, but such advertisements should not contain anything more than the name of the
institution, type of patients admitted, type of training and other facilities offered and the fees.

7.13 It is improper for a physician to use an unusually large sign board and write on it anything
other than his name, qualifications obtained from a University or a statutory body, titles and name
of his speciality, registration number including the name of the State Medical Councilunder
which registered. The same should be the contents of his prescription papers. It is improper to
affix a sign-board on a chemist’s shop or in places where he does not reside orwork.

7.14 The registered medical practitioner shall not disclose the secrets of a patient that have
been learnt in the exercise of his / her profession except –
i) in a court of law under orders of the Presiding Judge;
ii) in circumstances where there is a serious and identified risk to a specific person
and / or community; and
iii) notifiable diseases.

In case of communicable / notifiable diseases, concerned public health authorities should be

informed immediately.

7.15 The registered medical practitioner shall not refuse on religious grounds alone to give
assistance in or conduct of sterility, birth control, circumcision and medical termination of
Pregnancy when there is medical indication, unless the medical practitioner feels himself/herself
incompetent to do so.

7.16 Before performing an operation the physician should obtain in writing the consent from the
husband or wife, parent or guardian in the case of minor, or the patient himself as the case may
be. In an operation which may result in sterility the consent of both husband and wife is needed.

7.17 A registered medical practitioner shall not publish photographs or case reports of his / her
patients without their permission, in any medical or other journal in a manner by which their identity
could be made out. If the identity is not to be disclosed, the consent is not needed.

7.18 In the case of running of a nursing home by a physician and employing assistants to help
him / her, the ultimate responsibility rests on the physician.

7.19 A Physician shall not use touts or agents for procuring patients.

7.20 A Physician shall not claim to be specialist unless he has a special qualification in that
branch.

7.21 No act of invitro fertilization or artificial insemination shall be undertaken without theinformed
consent of the female patient and her spouse as well as the donor. Such consent shall be obtained
in writing only after the patient is provided, at her own level of comprehension, with sufficient
information about the purpose, methods, risks, inconveniences, disappointments of the procedure
and possible risks and hazards.

7.22 Research: Clinical drug trials or other research involving patients or volunteers as per the
guidelines of ICMR can be undertaken, provided ethical considerations are borne in mind. Violation
of existing ICMR guidelines in this regard shall constitute misconduct. Consent taken from the
patient for trial of drug or therapy which is not as per the guidelines shall also be construed as
misconduct.

The following Clause No. 7.23 & 7.24 are deleted in terms of Notification published
on 22.02.2003 in Gazette of India.

16
7.23 If a physician posted in rural area is found absent on more than two occasions during
inspection by the Head of the District Health Authority or the Chairman, Zila Parishad, the same
shall be construed as a misconduct if it is recommended to the Medical Council of India/State
Medical Council by the State Government for action under these Regulations.

7.24 If a physician posted in a medical college/institution both as teaching faculty or otherwise

shall remain in hospital/college during the assigned duty hours. If they are found absent on more
than two occasions during this period, the same shall be construed as a misconduct if it is certified
by the Principal/Medical Superintendent and forwarded through the State Governmentto Medical
Council of India/State Medical Council for action under these Regulations.

CHAPTER 8

8. PUNISHMENT AND DISCIPLINARY ACTION

8.1 It must be clearly understood that the instances of offences and of Professional misconduct
which are given above do not constitute and are not intended to constitute a complete list of the
infamous acts which calls for disciplinary action, and that by issuing this notice the Medical Council
of India and or State Medical Councils are in no way precluded from considering and dealing with
any other form of professional misconduct on the part of a registered practitioner. Circumstances
may and do arise from time to time in relation to which there may occur questions of professional
misconduct which do not come within any of these categories. Every care should be taken that the
code is not violated in letter or spirit. In such instances as in all others, the Medical Council of India
and/or State Medical Councils have to consider and decide upon the facts brought before the
Medical Council of India and/or State Medical Councils.

8.2 It is made clear that any complaint with regard to professional misconduct can be brought
before the appropriate Medical Council for Disciplinary action. Upon receipt of any complaint of
professional misconduct, the appropriate Medical Council would hold an enquiry and give
opportunity to the registered medical practitioner to be heard in person or by pleader. If the medical
practitioner is found to be guilty of committing professional misconduct, the appropriate Medical
Council may award such punishment as deemed necessary or may direct the removal altogether
or for a specified period, from the register of the name of the delinquent registered practitioner.
Deletion from the Register shall be widely publicized in local press as well as in the publications
of different Medical Associations/ Societies/Bodies.

8.3 In case the punishment of removal from the register is for a limited period, the appropriate
Council may also direct that the name so removed shall be restored in the register after the expiry
of the period for which the name was ordered to be removed.

8.4 Decision on complaint against delinquent physician shall be taken within a time limit of 6
months.

8.5 During the pendency of the complaint the appropriate Council may restrain the physician from
performing the procedure or practice which is under scrutiny.

8.6 Professional incompetence shall be judged by peer group as per guidelines prescribed by
Medical Council of India.

8.7 The following Clause No. 8.7 & 8.8 are included in terms of Notification published on
27.05.2004 in Gazette of India.

“8.7 Where either on a request or otherwise the Medical Council of India is informed that
any complaint against a delinquent physician has not been decided by a State Medical
Council within a period of six months from the date of receipt of complaint by it and further
the MCI has reason to believe that there is no justified reason for not deciding the complaint
within the said prescribed period, the Medical Council of India may-

(i) Impress upon the concerned State Medical council to conclude and decide the
complaint within a time bound schedule;
(ii) May decide to withdraw the said complaint pending with the concerned State Medical
Council straightaway or after the expiry of the period which had been stipulated by the

17
MCI in accordance with para(i) above, to itself and refer the same to the Ethical Committee
of the Council for its expeditious disposal in a period of not more than six months from the
receipt of the complaint in the office of the Medical Council of India.”

“8.8 Any person aggrieved by the decision of the State Medical Council on any complaint
against a delinquent physician, shall have the right to file an appeal to the MCI within a
period of 60 days from the date of receipt of the order passed by the said Medical Council:

Provided that the MCI may, if it is satisfied that the appellant was prevented by sufficient
cause from presenting the appeal within the aforesaid period of 60 days, allow it to be
presented within a further period of 60 days.

18
 APPENDIX - 1

A. DECLARATION

At the time of registration, each applicant shall be given a copy of the following declaration by
the Registrar concerned and the applicant shall read and agree to abide by the same:

1) I solemnly pledge myself to consecrate my life to service of humanity.

2) Even under threat, I will not use my medical knowledge contrary to the laws of
Humanity.

3) I will maintain the utmost respect for human life from the time of conception.

4) I will not permit considerations of religion, nationality, race, party politics or social
standing to intervene between my duty and my patient.

5) I will practice my profession with conscience and dignity.

6) The health of my patient will be my first consideration.

7) I will respect the secrets which are confined in me.

8) I will give to my teachers the respect and gratitude which is their due.

9) I will maintain by all means in my power, the honour and noble traditions of
medical profession.

10) I will treat my colleagues with all respect and dignity.

11) I shall abide by the code of medical ethics as enunciated in the Indian Medical
Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.

I make these promises solemnly, freely and upon my honour.

Signature ………………………………………………
Name ………………………………………………………
Place ………………………………………………………
Address………………………………………………
……………………… ………………………
……………………… ………………………
Date …………………

19
 APPENDIX – 2

1. FORM OF CERTIFICATE RECOMMENDED FOR LEAVE OR EXTENSION OR

COMMUNICATION OF LEAVE AND FOR FITNESS

Signature of patient
or thumb impression

To be filled in by the applicant in the presence of the Government Medical Attendant, or Medical
Practitioner.

Identification marks:-

1.

2.

I, Dr. after careful examination of the case certify

hereby that whose signature is given above is suffering from
and I consider that a period of absence from duty of
with effect from is absolutely necessary for the
restoration of his health.

I, Dr. after careful examination of the case certify hereby that

on restoration of health is now fit to join service.

Place Signature of Medical attendant.

Date Registration No.

(Medical Council of India / State Medical

Council of ..................... State)

Note:- The nature and probable duration of the illness should also be specified . This certificate
must be accompanied by a brief resume of the case giving the nature of the illness, its symptoms,
causes and duration.

20
 APPENDIX-3

FORMAT FOR MEDICAL RECORD

(see regulation 3.1)

Name of the patient :

Age :

Sex :

Address :

Occupation :

Date of 1st visit :

Clinical note (summary) of the case :

Prov. : Diagnosis :

Investigations advised with reports :

Diagnosis after investigation :

Advice :

Follow up :

Date: Observations:

Signature in full ………………………….

Name of Treating Physician

21
 APPENDIX –4

LIST OF CERTIFICATES, REPORTS, NOTIFICATIONS ETC. ISSUED BY DOCTORS FOR

THE PURPOSES OF VARIOUS ACTS / ADMINISTRATIVE REQUIREMENTS

a) Under the acts relating to birth, death or disposal of the dead.

b) Under the Acts relating to Lunacy and Mental Deficiency and under the Mental illness Act
and the rules made thereunder.

c) Under the Vaccination Acts and the regulations made thereunder.

d) Under the Factory Acts and the regulations made thereunder.

e) Under the Education Acts.

f) Under the Public Health Acts and the orders made thereunder.

g) Under the Workmen’s Compensation Act and Persons with Disability Act.

h) Under the Acts and orders relating to the notification of infectious diseases.

i) Under the Employee’s State Insurance Act.

j) In connection with sick benefit insurance and friendly societies.

k) Under the Merchant Shipping Act.

l) For procuring / issuing of passports.

m) For excusing attendance in courts of Justice, in public services, in public offices or in

ordinary employment.

n) In connection with Civil and Military matters.

o) In connection with matters under the control of Department of Pensions.

p) In connection with quarantine rules.

q) For procuring driving licence.

*************************************************

Foot Note: The Principal Regulations namely, “Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002” were published in Part – III, Section (4) of
the Gazette of India on the 6th April, 2002, and amended vide MCI notifications
dated 22/02/2003, 26/05/2004 & 14.12.2009.

22
 THE INDIAN CONTRACT ACT, 1872

ARRANGEMENT OF SECTIONS

SECTIONS
PREAMBLE

PRELIMINARY
1. Short title.
Extent.
Commencement.
Saving.
2. Interpretation-clause.

CHAPTER I
OF THE COMMUNICATION, ACCEPTANCE AND
REVOCATION OF PROPOSALS
3. Communication, acceptance and revocation of proposals.
4. Communication when complete.
5. Revocation of proposals and acceptances.
6. Revocation how made.
7. Acceptance must be absolute.
8. Acceptance by performing conditions, or receiving consideration.
9. Promises, express and implied.

CHAPTER II
OF CONTRACTS, VOIDABLE CONTRACTS AND VOID
AGREEMENTS
10. What agreements are contracts.
11. Who are competent to contract.
12. What is a sound mind for the purposes of contracting.
13. “Consent” defined.
14. “Free consent” defined.
15. “Coercion” defined.
16. “Undue influence” defined.
17. “Fraud” defined.
18. “Misrepresentation” defined.
19. Voidability of agreements without free consent.
19A. Power to set aside contract induced by undue influence.
20. Agreement void where both parties are under mistake as to matter of fact.
21. Effect of mistakes as to law.
22. Contract caused by mistake of one party as to matter of fact.

1
SECTIONS
23. What considerations and objects are lawful, and what not.

Void agreements
24. Agreement void, if considerations and objects unlawful in part.
25. Agreement without consideration, void, unless it is in writing and registered, or is a promise to
compensate for something done, or is a promise to pay a debt barred by limitation law.
26. Agreement in restraint of marriage, void.
27. Agreement in restraint of trade, void.
Saving of agreement not to carry on business of which good-will is sold.
28. Agreements in restraint of legal proceeding void.
Saving of contract to refer to arbitration dispute that may arise.
Saving of contract to refer questions that have already arisen.
Saving of a guarantee agreement of a bank or a financial institution.
29. Agreements void for uncertainty.
30. Agreements by way of wager, void.
Exception in favour of certain prizes for horse-racing.
Section 294A of the Indian Penal Code not affected.

CHAPTER III
OF CONTINGENT CONTRACTS
31. “Contingent contract” defined.
32. Enforcement of contracts contingent on an event happening.
33. Enforcement of contracts contingent on an event not happening.
34. When event on which contract is contingent to be deemed impossible, if it is the future conduct of
a living person.
35. When contracts become void which are contingent on happening of specified event within fixed
time.
When contracts may be enforced, which are contingent on specified event not happening within
fixed time.
36. Agreement contingent on impossible events void.

CHAPTER IV
OF THE PERFORMANCE OF CONTRACTS

Contracts which must be performed

37. Obligation of parties to contracts.
38. Effect of refusal to accept offer of performance.
39. Effect of refusal of party to perform promise wholly.

By whom contracts must be performed

40. Person by whom promise is to be performed.

41. Effect of accepting performance from third person.

2
SECTIONS
42. Devolution of joint liabilities.
43. Any one of joint promisors may be compelled to perform.
Each promisor may compel contribution.
Sharing of loss by default in contribution.
44. Effect of release of one joint promisor.
45. Devolution of joint rights.
Time and place for performance
46. Time for performance of promise, when no application is to be made and no time is specified.
47. Time and place for performance of promise, where time is specified and no application to be
made.
48. Application for performance on certain day to be at proper time and place.
49. Place for performance of promise, where no application to be made and no place fixed for
performance.
50. Performance in manner or at time prescribed or sanctioned by promisee.

Performance of reciprocal promises

51. Promisor not bound to perform, unless reciprocal promisee ready and willing to perform.
52. Order of performance of reciprocal promises.
53. Liability of party preventing event on which the contract is to take effect.
54. Effect of default as to that promise which should be first performed, in contract consisting of
reciprocal promises.
55. Effect of failure to perform at fixed time, in contract in which time is essential.
Effect of such failure when time is not essential.
Effect of acceptance of performance at time other than that agreed upon.
56. Agreement to do impossible act.
Contract to do an act afterwards becoming impossible or unlawful.
Compensation for loss through non-performance of act known to be impossible or unlawful.
57. Reciprocal promise to do things legal, and also other things illegal.
58. Alternative promise, one branch being illegal.

Appropriation of payments

59. Application of payment where debt to be discharged is indicated.

60. Application of payment where debt to be discharged is not indicated.
61. Application of payment where neither party appropriates.

Contracts which need not be performed

62. Effect of novation, rescission, and alteration of contract.

63. Promisee may dispense with or remit performance of promise.
64. Consequences of rescission of voidable contract.
65. Obligation of person who has received advantage under void agreement, or contract that becomes
void.
66. Mode of communicating or revoking rescission of voidable contract.
67. Effect of neglect of promisee to afford promisor reasonable facilities for performance.

3
 CHAPTER V
OF CERTAIN RELATIONS RESEMBLING THOSE CREATED BY CONTRACT
SECTIONS

68. Claim for necessaries supplied to person incapable of contracting, or on his account.
69. Reimbursement of person paying money due by another, in payment of which he is interested.
70. Obligation of person enjoying benefit of non-gratuitous act.
71. Responsibility of finder of goods.
72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.

CHAPTER VI
OF THE CONSEQUENCES OF BREACH OF CONTRACT
73. Compensation for loss or damage caused by breach of contract.
Compensation for failure to discharge obligation resembling those created by contract.
74. Compensation for breach of contract where penalty stipulated for.
75. Party rightfully rescinding contract, entitled to compensation.
[CHAPTER VII SALE OF GOODS.][Repealed.].
76. [Repealed.].
77. [Repealed.].
78. [Repealed.].
79. [Repealed.].
80. [Repealed.].
81. [Repealed.].
82. [Repealed.].
83. [Repealed.].
84. [Repealed.].
85. [Repealed.].
86. [Repealed.].
87. [Repealed.].
88. [Repealed.].
89. [Repealed.].
[DELIVERY.][Repealed.].
90. Repealed.].
91. [Repealed.].
92. [Repealed.].
93. [Repealed.].
94. [Repealed.]
[SELLER’S LIEN.][Repealed.].
95. [Repealed.].
96. [Repealed.].
97. [Repealed.].
98. [Repealed.]
[STOPPAGE IN TRANSIT.][Repealed.].

99. [Repealed.].
100. [Repealed.].
101. [Repealed.].

4
SECTIONS
102.[Repealed.].
103.[Repealed.].
104.[Repealed.].
105.[Repealed.].
106.[Repealed.].
[RESALE.][Repealed.].

107. [Repealed.].
[TITLE.][Repealed.].
108.[Repealed.].
[WARRANTY.]Repealed.].

109. [Repealed.].
110. [Repealed.].
111. [Repealed.].
112. [Repealed.].
113. [Repealed.].
114. [Repealed.].
115. [Repealed.].
116. [Repealed.].
117. [Repealed.].
118. [Repealed.].

[MISCELLANEOUS.][Repealed.].
119.[Repealed.].
120.[Repealed.].
121.[Repealed.].
122.[Repealed.].
123.[Repealed.].

CHAPTERVIII
OF INDEMNITY AND GUARANTEE
124. “Contract of indemnity” defined.

125. Rights of indemnity-holder when sued.

126. “Contract of guarantee”, “surety”, “principal debtor” and “creditor”.
127. Consideration for guarantee.
128. Surety’s liability.
129. “Continuing guarantee”.
130. Revocation of continuing guarantee.
131. Revocation of continuing guarantee by surety’s death.
132. Liability of two persons, primarily liable, not affected by arrangement between them that one shall be
surety on other’s default.
133. Discharge of surety by variance in terms of contract.
134. Discharge of surety by release or discharge of principal debtor.
135. Discharge of surety when creditor compounds with, gives time to, or agrees not to sue, principal debtor.
136. Surety not discharged when agreement made with third person to give time to principal debtor.
137. Creditor’s forbearance to sue does not discharge surety.
138. Release of one co-surety does not discharge others.

5
SECTIONS
139. Discharge of surety of creditor’s act or omission impairing surety’s eventual remedy.
140. Rights of surety on payment or performance.
141. Surety’s right to benefit of creditor’s securities.
142. Guarantee obtained by misrepresentation invalid.
143. Guarantee obtained by concealment invalid.
144. Guarantee on contract that creditor shall not act on it until co-surety joins.
145. Implied promise to indemnify surety.
146. Co-sureties liable to contribute equally.
147. Liability of co-sureties bound in different sums.

CHAPTER IX
OF BAILMENT

148. “Bailment”, “bailor” and “bailee” defined.

149. Delivery to bailee how made.
150. Bailor’s duty to disclose faults in goods bailed.
151. Care to be taken by bailee.
152. Bailee when not liable for loss, etc., of thing bailed.
153. Termination of bailment by bailee’s act inconsistent with conditions.
154. Liability of bailee making unauthorized use of goods bailed.
155. Effect of mixture, with bailor’s consent, of his goods with bailee’s.
156. Effect of mixture, without bailor’s consent, when the goods can be separated.
157. Effect of mixture, without bailor’s consent, when the goods cannot be separated.
158. Repayment, by bailor, of necessary expenses.
159. Restoration of goods lent gratuitously.
160. Return of goods bailed on expiration of time or accomplishment of purpose.
161. Bailee’s responsibility when goods are not duly returned.
162. Termination of gratuitous bailment by death.
163. Bailor entitled to increase or profit from goods bailed.
164. Bailor’s responsibility to bailee.
165. Bailment by several joint owners.
166. Bailee not responsible on re-delivery to bailor without title.
167. Right of third person claiming goods bailed.
168. Right of finder of goods.
May sue for specific reward offered.
169. When finder of thing commonly on sale may sell it.
170. Bailee’s particular lien.
171. General lien of bankers, factors, wharfingers, attorneys and policy-brokers.

Bailments of pledges
172. “Pledge”, “Pawnor” and “Pawnee” defined.
173. Pawnee’s right of retainer.

6
SECTIONS
174. Pawnee not to retain for debt or promise other than that for which goods pledged.
Presumption in case of subsequent advances.
175. Pawnee’s right as to extraordinary expenses incurred.
176. Pawnee’s right where pawnor makes default.
177. Defaulting pawnor’s right to redeem.
178. Pledge by mercantile agent.
178A. Pledge by person in possession under voidable contract.
179. Pledge where pawnor has only a limited interest.

Suits by bailees or bailors against wrong-doers

180. Suit by bailor or bailee against wrong-doer.
181. Apportionment of relief or compensation obtained by such suits.

CHAPTER X
AGENCY
Appointment and authority of agents
182. “Agent” and “principal” defined.
183. Who may employ agent.
184. Who may be an agent.
185. Consideration not necessary.
186. Agent’s authority may be expressed or implied.
187. Definitions of express and implied authority.
188. Extent of agent’s authority.
189. Agent’s authority in an emergency.
Sub-agents
190. When agent cannot delegate.
191. “Sub-agent” defined.
192. Representation of principal by sub-agent properly appointed.
Agent’s responsibility for sub-agent.
Sub-agent’s responsibility.
193. Agent’s responsibility for sub-agent appointed without authority.
194. Relation between principal and person duly appointed by agent to act in business of agency.
195. Agent’s duty in naming such person.

Ratification

196. Right of person as to acts done for him without his authority.
Effect of ratification.
197. Ratification may be expressed or implied.
198. Knowledge requisite for valid ratification.
199. Effect of ratifying unauthorized act forming part of a transaction.
200. Ratification of unauthorized act cannot injure third person.

7
 Revocation of authority
SECTIONS
201. Termination of agency.
202. Termination of agency, where agent has an interest in subject-matter.
203. When principal may revoke agent’s authority.
204. Revocation where authority has been partly exercised.
205. Compensation for revocation by principal, or renunciation by agent.
206. Notice of revocation or renunciation.
207. Revocation and renunciation may be expressed or implied.
208. When termination of agent’s authority takes effect as to agent, and as to third persons.
209. Agent’s duty on termination of agency by principal’s death or insanity.
210. Termination of sub-agent’s authority.

Agent’s duty to principal

211. Agent’s duty in conducting principal’s business.
212. Skill and diligence required from agent.
213. Agent’s accounts.
214. Agent’s duty to communicate with principal.
215. Right of principal when agent deals, on his own account, in business of agency without
principal’s consent.
216. Principal’s right to benefit gained by agent dealing on his own account in business of agency.
217. Agent’s right of retainer out of sums received on principal’s account.
218. Agent’s duty to pay sums received for principal.
219. When agent’s remuneration becomes due.
220. Agent not entitled to remuneration for business misconducted.
221. Agent’s lien on principal’s property.
Principal’s duty to agent

222. Agent to be indemnified against consequences of lawful acts.

223. Agent to be indemnified against consequences of acts done in good faith.
224. Non-liability of employer of agent to do a criminal act.
225. Compensation to agent for injury caused by principal’s neglect.

Effect of agency on contracts with third persons

226. Enforcement and consequences of agent’s contracts.

227. Principal how far bound, when agent exceeds authority.
228. Principal not bound when excess of agent’s authority is not separable.
229. Consequences of notice given to agent.
230. Agent cannot personally enforce, nor be bound by, contracts on behalf of principal.
Presumption of contract to contrary.
231. Rights of parties to a contract made by agent not disclosed.
232. Performance of contract with agent supposed to be principal.
233. Right of person dealing with agent personally liable.

8
SECTIONS
234. Consequence of inducing agent or principal to act on belief that principal or agent will be held
exclusively liable.
235. Liability of pretended agent.
236. Person falsely contracting as agent not entitled to performance.
237. Liability of principal inducing belief that agent’s unauthorized acts were authorized.
238. Effect, on agreement, of misrepresentation or fraud by agent.

CHAPTER XI
OF PARTNERSHIP

239. [Repealed.].
240. [Repealed.].
241. [Repealed.].
242. [Repealed.].
243. [Repealed.].
244. [Repealed.].
245. [Repealed.].
246. [Repealed.].
247. [Repealed.].
248. [Repealed.].
249. [Repealed.].
250. [Repealed.].
251. [Repealed.].
252. [Repealed.].
253. [Repealed.].
254. [Repealed.].
255. [Repealed.].
256. [Repealed.].
257. [Repealed.].
258. [Repealed.].
259. [Repealed.].
260. [Repealed.].
261. [Repealed.].
262. [Repealed.].
263. [Repealed.].
264. [Repealed.].
265. [Repealed.].
266. [Repealed.].
SCHEDULE—[Repealed.]

9
 THE INDIAN CONTRACT ACT, 1872
ACT NO. 9 OF 18721
[25th April, 1872.]
Preamble—WHEREAS it is expedient to define and amend certain parts of the law relating to
contracts;
It is hereby enacted as follows:—
PRELIMINARY
1. Short title.—This Act may be called the Indian Contract Act, 1872.
Extent, Commencement.—It extends to the whole of India 2[ 3***]; and it shall come into force onthe
first day of September, 1872.
Saving—4*** Nothing herein contained shall affect the provisions of any Statute, Act or Regulation
not hereby expressly repealed, nor any usage or custom of trade, nor any incident of any contract, not
inconsistent with the provisions of this Act.
2. Interpretation-clause.—In this Act the following words and expressions are used in the following
senses, unless a contrary intention appears from the context:—
(a) When one person signifies to another his willingness to do or to abstain from doing anything,
with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;

1. For the Statement of Objects and Reasons for the Bill which was based on a a report of Her Majesty’s Commissioners
appointed to prepare a body of substantive law for India, dated 6th July, 1866, see Gazette of India, 1867 Extraordinary, p. 34; for
the Report of the Select Committee, see ibid., Extraordinary, dated 28th March, 1872; for discussions in Council, see ibid., 1867,
Supplement, p. 1064; ibid., 1871, p. 313, and ibid., 1872, p. 527. It has been amended in C.P. by C.P. Act 1 of 1915 and in C.P.
and Berar by C.P. and Berar Act 15 of 1938.

The Chapters and sections of the Transfer of Property Act, 1882 (4 of 1882), which relate to contracts are, in places in whic h
that Act is in force, to be taken as part of this Act—see Act 4 of 1882, s. 4.

This Act has been extended to Berar by the Berar Laws Act, 1941 (4 of 1941) to Dadra and Nagar Haveli by Reg. 6 of 1963,
s. 2 and Sch. I to Goa, Daman and Diu by Reg. 11 of 1963, s. 3 and Sch., (w.e.f. 1-10-1965) to Laccadive, Minicoy and
Amindivi Islands by
Reg. 8 of 1965, s. 3 and Sch., to Pondicherry by Act 26 of 1968, s. 3 and Sch. and has been declared to be in force in—

the Sonthal Parganas—see Sonthal Parganas Settlement Regulation, 1872 (3 of 1872), s. 3, as amended by the Sonthal
Parganas Justice and Laws Regulation, 1899 (3 of 1899), s. 3.

Panth Piploda—see the Panth Piploda Law Regulation, 1929 (1 of 1929), s. 2.

It has been declared, by notification under s. 3(a) of the Scheduled Districts Act, 1874 (14 of 1874), to be in force in—

The Tarai of the Province of Agra—see Gazette of India, 1876, Pt. I, p. 505;

the Districts of Hazari bagh, Lohardaga and Manbhum, and Pargana Dhalbhum and the Kolhan in the District of Singhbhum—
see Gazette of India, 1881, pt. I, p. 504.—The District of Lohardaga included at this time the present District of Palamau which
was separated in 1894. The District of Lohardaga is now called the Ranchi District—see Calcutta Gazette, 1899, pt. I, p. 44.
2. Subs. by Act 3 of 1951, s. 3 and Sch., for “except Part B States.”
3. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f.
31-10- 2019).
4. The words “The enactments mentioned in the Schedule hereto are repealed to the extent specified in the third column thereof,
but” rep. by Act 10 of 1914, s. 3 and the Second Schedule.

10
 (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his
agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor
might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
Explanation 1.—Nothing in this section shall affect the validity, as between the donor and donee, of
any gift actually made.
Explanation 2.—An agreement to which the consent of the promisor is freely given is not void merely
because the consideration is inadequate; but the inadequacy of the consideration may be taken into account
by the Court in determining the question whether the consent of the promisor was freely given.
Illustrations
(a) A promises, for no consideration, to give to B Rs. 1,000. This is a void agreement.
(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a
contract.
(c) A finds B’s purse and gives it to him. B promises to give A Rs. 50. This is a contract.
(d) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a contract.
(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt.
This is a contract.
(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A’s consent to the agreement was freely given. The agreement is a contract
notwithstanding the inadequacy of the consideration.
(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the agreement was freely given.
The inadequacy of the consideration is a fact which the Court should take into account in considering whether or not A’s consent was freely
given.
26. Agreement in restraint of marriage, void.—Every agreement in restraint of the marriage of any
person, other than a minor, is void.
27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from
exercising a lawful profession, trade or business of any kind, is to that extent void.
Exception 1.—Saving of agreement not to carry on business of which good-will is sold.—One who
sells the good-will of a business may agree with the buyer to refrain from carrying on a similar business,
within specified local limits, so long as the buyer, or any person deriving title to the good-will from him,
carries on a like business therein, provided that such limits appear to the Court reasonable,regard being
had to the nature of the business.
1*
* * * *.
28.Agreements in restraint of legal proceedings, void.—2[Every agreement,—
(a) by which any party thereto is restricted absolutely from enforcing his rights under or inrespect
of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within
which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any
liability, under or in respect of any contract on the expiry of a specified period so as to restrict any
party from enforcing his rights,
is void to the extent.]
Exception 1.—Saving of contract to refer to arbitration dispute that may arise.—This section
shall not render illegal a contract, by which two or more persons agree that any dispute which may arise
between them in respect of any subject or class of subjects shall be referred to arbitration, and that only
the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
3*****

Exception 2.—Saving of contract to refer questions that have already arisen.—Nor shall this section
render illegal any contract in writing, by which two or more persons agree to refer to arbitrationany question
between them which has already arisen, or affect any provision of any law in force for the time being as
to references to arbitration4.

1. Exceptions 2 and 3 rep. by Act 9 of 1932, s. 73 and the Second Schedule.

2. Subs. by Act 1 of 1997, s. 2, for certain words (w.e.f. 8-1-1997).
3. The second clause of Exception 1 to section 28 rep. by Act 1 of 1877, s. 2 and Sch.
4. Cf. the Arbitration Act, 1940 (10 of 1940) and the Companies Act, 1956 (1 of 1956), s. 389.

18
 [Exception 3.—Saving of a guarantee agreement of a bank or a financial institution.—This section
1

shall not render illegal a contract in writing by which any bank or financial institution stipulate a term in a
guarantee or any agreement making a provision for guarantee for extinguishment of the rights or discharge of
any party thereto from any liability under or in respect of such guarantee or agreement on the expiry of a
specified period which is not less than one year from the date of occurring or non-occurring ofa specified
event for extinguishment or discharge of such party from the said liability.
Explanation.—(i) In Exception 3, the expression “bank” means—
(a) a “banking company” as defined in clause (c) of section 5 of the Banking Regulation
Act, 1949(10 of 1949);
(b) “a corresponding new bank” as defined in clause (da) of section 5 of the Banking Regulation
Act, 1949(10 of 1949);
(c) “State Bank of India” constituted under section 3 of the State Bank of India Act, 1955
(23 of 1955);
(d) “a subsidiary bank” as defined in clause (k) of section 2 of the State Bank of India (Subsidiary
Banks) Act, 1959(38 of 1959);
(e) “a Regional Rural Bank” established under section 3 of the Regional Rural Banks
Act, 1976(21 of 1976);
(f) “a Co-operative Bank” as defined in clause (cci) of section 5 of the Banking Regulation
Act, 1949(10 of 1949);
(g) “a multi-State co-operative bank” as defined in clause (cciiia) of section 5 of the Banking
Regulation Act, 1949(10 of 1949); and
(ii) In Exception 3, the expression “a financial institution” means any public financial institution
within the meaning of section 4A of the Companies Act, 1956(1 of 1956).]
29. Agreements void for uncertainty.—Agreements, the meaning of which is not certain, or capable
of being made certain, are void.
Illustrations
(a) A agrees to sell to B “a hundred tons of oil”. There is nothing whatever to show what kind of oil was intended. The
agreement is void for uncertainty.
(b) A agrees to sell to B one hundred tons of oil of a specified description, known as an article of commerce. There is no
uncertainty here to make the agreement void.
(c) A, who is a dealer in cocoanut-oil only, agrees to sell to B “one hundred tons of oil”. The nature of A’s trade affords an
indication of the meaning of the words, and A has entered into a contract for the sale of one hundred tons of cocoanut-oil.
(d) A agrees to sell to B “all the grain in my granary at Ramnagar”. There is no uncertainty here to make the agreement void.
(e) A agrees to sell B “one thousand maunds of rice at a price to be fixed by C”. As the price is capable of being made
certain, there is no uncertainty here to make the agreement void.
(f) A agrees to sell to B “my white horse for rupees five hundred or rupees one thousand”. There is nothing to show which of
the two prices was to be given. The agreement is void.

30. Agreements by way of wager void.—Agreements by way of wager are void; and no suit shall be
brought for recovering anything alleged to be won on any wager, or entrusted to any person to abide the result
of any game or other uncertain event on which any wager is made.

1. Ins. by Act 4 of 2013, s. 17 and the Schedule (w.e.f. 18-1-2013).

19
 NATIONAL MEDICAL COMMISSION
NEW DELHI, DATED

National Medical Commission Registered Medical Practitioner

(Professional Conduct) Regulations, 2022

No. xxxx/xxx/NMC. In exercise of the powers conferred by section 27(1)b, read

with sections 10(b)(f), 16(2), and 57(2)zh of the National Medical CommissionAct,
2019 (No.30 of 2019), the National Medical Commission hereby makes the
following Regulations relating to Professional Conduct of Registered Medical
Practitioners namely:-

Chapter-1

Preliminary

1. Short Title and Commencement:

(A) These regulations may be called the National Medical Commission

Registered Medical Practitioner (Professional Conduct) Regulations, 2022

(B) They shall come into force on the date of their publication in the Official
Gazette.
2. Definitions:
(A) In these regulations, unless the context otherwise requires, -
a) “Act” means the National Medical Commission Act, 2019 (No.30 of 2019);
b) "Commission" or NMC means the National Medical Commission constituted
under section 3

c) " Ethics and Medical Registration Board" or EMRB means the Board
constituted under section 16;

d) “Form” means a Form appended to these regulations;

e) “Modern medicine” or “Allopathy” is a healthcare discipline that involves a

scientific understanding of disease processes and uses rational and
evidence-based treatment methods. This system of medicine views disease
as a biological abnormality in the function or structure of organs or organ
systems, with effects on organs and the body as a whole. Animal
experiments may be used to understand disease processes and the efficacy
 of therapeutic measures. Medical research using blinded studies and
statistical analyses informs all aspects of diagnosis, testing, treatment, and
disease prevention. Modern medicine has international uniformity in theory
and practice. It has found universal acceptance in India and is currently
practiced and taught in Government and Private hospitals and medical
colleges governed/regulated and accredited by the National Medical
Commission, Government of India.

f) "National Register" means a National Medical Register maintained by the

Ethics and Medical Registration Board under section 31;

g) “Registered Medical Practitioner” or “RMP” means a person whose name is

either in the State Medical Register or the Indian Medical Register or the
National Medical Register unless otherwise specified.

h) “Schedule” means the Schedule appended to these regulations.

i) "State Medical Council" means a medical council constituted under any law
for the time being in force in any State or Union territory for regulating the
practice and registration of practitioners of medicine in that State or Union
territory.

j) "State Register" means a register maintained under any law for the time
being in force in any State or Union territory for registration of practitioners of
medicine.

(B) The words and expressions used herein and not defined but defined in the Act
shall have the same meanings as assigned to them in the Act.

Chapter 2

Professional Conduct of RMPs

3. Duties and responsibilities of the Registered Medical Practitioners: At

the time of making an application for registration under the provisions of the
NMC Act, it shall be deemed that the RMP has read and agreed to abide by
these regulations.

4. Prefix, Suffix and Modern Medicine:

(A) Only those RMPs who are registered under NMC Act, 2019, can use

2
Medical Doctor (Med Dr.) as a prefix before their names. Every self-
employed RMP shall display the unique registration ID assigned to her/him
by EMRB in his/her prescription, certificate, and money receipts given to
patients. Employed RMP shall get a seal made by the employer for displaying
the unique registration number below the RMP’s signatures. (L1).

(Guideline for prescription)

(B) The RMP shall display as suffix to his/her name only NMC recognized
and accredited medical degrees/diplomas as provided in the nomenclature
of the regulations and listed on the NMC website. (List of such Degrees and
Diplomas will be on the website and updated regularly)RMPs qualified
abroad and seeking registration to practice after clearing FMGE/NEXT must
use NMC-approved equivalent Medical prefixes and suffixes to provide
clarity to patients and the public at large. (L1).

(C) A RMP shall not claim to be a clinical specialist unless he/she has NMC
recognized training and qualification in that specific branch of modern
medicine (The list of recognized post-graduation and super-specialization
degrees/diplomas will be available on the NMC website) (L1, L2)

(D) Every RMP shall practice the system of medicine in which he/she has
trained and certified (for this purpose referred to as modern medicine* or
allopathic medicine) and shall not associate professionally with any
unqualified person to perform any treatment, procedure, or operation.(L2)

(E) A RMP shall not employ in connection with his/her professional practice
any healthcare professional who is neither registered nor trained under the
relevant Medical Acts in force related to the practice of modern medicine.
Provided that having employed any other assistants in the practice, the
ultimate responsibility rests on the self-employed RMP or the RMP
responsible for administration and recruitment in case of hospital
practice.(L2)

(F) A person qualified in more than one system of medicine should decide
which system he wants to practice. Once licensed to practice Modern
medicine under NMC Act, he shall not practice another system of medicine

3
 simultaneously. Short courses in other systems of medicine do not qualify a
practitioner to practice and prescribe in that system of medicine.(L2)

5. Continuing Professional Development Program: A RMP should attend continuing

professional development programs regularly each year, totaling at least 30 credit
hours every five years. Only recognized medical colleges and health institutions or
medical societies accredited or authorized by EMRB/State medical Councils can
offer training and credit hours for this purpose. Credit hours awarded shall be
updated online against the Unique Registration Number of RMP on the EMRB-
NMC website. Renewal of License to practice should be done every 5 years (from
the publication of the Gazette notification), after submitting documentation of CPD
credit hours. The license renewal form will allow updates of details like
specialization, place of work, address, contact details, or any other detail specified
by EMRB/NMC. RMPs who wish to practice in another State (due to transfer of work of
residence) should inform that State Medical Council and apply for License to practice in
that State. State will have to mandatorily provide license to practice charging appropriate
fee within 7 days. (CPD guidelines) (L2)

6. Right to remuneration of A RMP: Consultation fees should be made known to the

patient before examination or treatment of the patient. A reasonable estimation of
the cost of surgery or treatment should be provided to the patient to enable an
informed decision. A RMP can refuse to continue to treat a patient if the fees, as
indicated, are not paid. This does not apply to doctors in Government service or
emergencies and the doctor must ensure that the patient is not abandoned. (L1)

7. Prohibiting Soliciting of Patients: A RMP shall not solicit patients directly or

indirectly or as a part of the group of RMPs, or institutions or organizations or
hospitals or nursing homes, or corporate hospitals established, owned, controlled,
or maintained by the appropriate Government, local authority, trust, whether private
or public, corporation, co-operative society, organization or any other entity or
person. (L2)

8. Prescribing Generic Medicine: Every RMP is expected to prescribe drugs using generic
names written legibly and prescribe drugs rationally, avoiding unnecessary medications and

4
 irrational fixed-dose combination tablets. (L1, L2) (Generic Drugs and Prescription
guidelines)

9. Prohibition of Fee Splitting/Commissions: A RMP shall not directly or indirectly

participate in any act of division, transfer, assignment, subordination, rebating,
splitting, or refunding of any fee for diagnostic, scanning, medical, surgical, or other
treatment. These provisions shall apply with equal force to the referring,
recommending, or procuring by a RMP of any patient, specimen, or material for
diagnostic purposes or other studies/work. However, nothing in this section shall
prohibit payment of salaries by a qualified RMP to another duly qualified person
rendering medical care under his/her supervision. RMP shall not use online forums
or agents for procuring patients. (L3)

10. Prohibition of endorsement of the product or a person:

A. A RMP individually or as part of an organization/association/society shall not give to any

person or to any companies or to any products or to software/platforms, whether for
compensation or otherwise, any approval, recommendation, endorsement, certificate,
report, or statement concerning any drug, medicine, nostrum remedy, surgical, or
therapeutic article, apparatus or appliance or any commercial product or article with respect
of any property, quality or use thereof or any test, demonstration or trial thereof, for use in
connection with his name, signature, or photograph in any form or manner of advertising
through any mode nor shall he boast of cases, operations, cures or remedies or permit the
publication of report thereof through any mode. (L3)
B. A RMP shall not issue certificates of proficiency in modern medicine to unqualified or non-
medical persons. This does not restrict the proper training and instruction of bonafide
students, midwives, dispensers, surgical attendants, or skilled mechanical and technical
assistants & therapy assistants under the personal supervision of RMPs. (L2). Every
certificate must contain the details regarding experience, skills and competency obtained,
duration of the training, and kind of work done during training. The onus of the veracity of
the certificates lies with the RMP. (L2)
11. Restriction on Advertisment:
A. A RMP is permitted to make a formal announcement in any media (print,
electronic or social) within 3 months regarding the following: (1) On
starting practice (2) On change of type of practice (3) On changing

5
 address (4) On temporary absence from duty (5) On resumption of
practice (6) On succeeding to another practice (7) Public declaration of
charges. (L2).
B. A RMP or any other person including corporate hospitals, running a
maternity home, nursing home, private hospital, rehabilitation center, or
any type of medical training institution, etc. may place announcements in
the lay press, but these should not contain anything more than the name
of the institution, type of patients admitted, kind of training and other
facilities offered and the fees. (Guidelines on social media conduct)(L1,
L2)
C. A RMP is allowed to do public education through media without soliciting
patients for himself or the institution (L2)

12. Responsibility of RMP regarding the sale of drugs:

A. A RMP shall not run an open shop to sell medicine prescribed by RMPs other than himself
or for the sale of medical or surgical appliances. They are allowed to sell medication to
his/her own patients. (L2)
B. RMP can prescribe or supply drugs, remedies, or appliances as long as there is no
exploitation of the patients. Drugs prescribed by a RMP or bought from the pharmacy for
a patient should explicitly state the generic name of the drug. (L2)
C. A RMP shall not dispense or prescribe secret remedial agents of which he does not know
the composition or action in the body. The manufacture or promotion or use of these
remedies is prohibited. (L3)
13. Responsibility of RMP regarding the Medical Records:
A. Every self-employed RMP shall maintain medical records of patients (outpatients or
inpatients) for 3 years from the date of the last contact with the patient for treatment, in a
standard proforma laid down by the NMC. (Guideline) (L2)
B. If any request is made for medical records to a RMP responsible for patient records in a
hospital or healthcare institution either by the patients / authorized attendant or legal
authorities involved, the same may be duly acknowledged and documents shall besupplied
within 5 working days. (L2)
C. In case of medical emergencies, the medical records should be made available on the
same day. (L2)
D. Efforts shall be made to computerize patient’s medical records for quick retrieval and

6
 security. Within 3 years from the date of publication of these regulations, the RMP shall
fully digitize records, abiding by the provisions of the IT Act, Data protection and privacy
laws, or any other applicable laws, rules, and regulations notified from time to time for
protecting the privacy of patient data. (L1, L2)
E. RMPs are in certain cases bound by law to give or may from time to time be called upon
to give certificates, notifications, reports, and other documents of similar character, signed
by them in their professional capacity for subsequent use in the courts or administrative or
other purposes. Such reports, certificates, or documents should not be untrue, misleading,
or improper. A self-employed RMP shall maintain a Register giving full details of such
certificates issued by him/her. (L3)

14.A RMP shall cooperate in the investigation against incompetent, corrupt or

dishonest conduct of other members of the profession without fear or favor. (L1)

15. The RMP shall not aid or abet torture, nor shall he be a party to either infliction of
mental or physical trauma or concealment of torture inflicted by another person or
agency in clear violation of human rights. (L3)

16. Practicing euthanasia shall constitute unethical conduct. However, in some

instances, the question of withdrawing life-supporting devices or measures even
after brain death shall be decided following the provisions of the Transplantation of
Human Organ Act, 1994. (End of Life Guidelines)

17. The RMP should respect the boundaries of the doctor-patient relationship and not
exploit the patient for personal, social, and business reasons (L2) and in particular,
avoid sexual boundary violations. (L4)

18. RMP shall not refuse on religious grounds alone to assist in or conduct of sterility,
birth control, circumcision, and medical termination of Pregnancy when there is a
medical indication. (L3)

19. Informed Consent:

(A). Before performing any clinical procedure, diagnostic or therapeutic, or

operation, the RMP should obtain the documented informed consent of the patient.
In case the patient is unable to give consent, the consent of the legal guardian or

7
 family member must be taken. The name of the operating surgeon must be mentioned in
the medical records. In an operation that may result in sterility, the consent of both
husband and wife is required. In case of an emergency, the doctor should try to
obtain consent, but if this is not possible, he must act in the best interest of the
patient. The medical records should describe the basis of decisions taken in an
emergency No act of in-vitro fertilization or artificial insemination shall be
undertaken without the informed written consent of the female patient and her
spouse as well as the donor. (Consent Guidelines) (L4)

(B). A RMP shall not publish photographs or case reports of patients without their
permission in any medical or another journal in a manner by which their identity
could be revealed. (L1)

(C). Clinical drug trials or other research involving patients or volunteers must
comply with ICMR guidelines and the New Drugs and Clinical Trials Rules, 2018.
Consent taken from the patient or participants for the trial of drug or therapy which
is not as per the guidelines shall also be construed as misconduct. (Research
Guidelines) (L2 - L4)

20. Conduct of RMP on Social/Electronic and Print Media shall follow the prescribed
guidelines (Social Media Guidelines) (L1)

21. RMP should take due care in practice and exercise reasonable skills as expected,
to preserve the life and health of the patient and follow the guidelines (Guidelines
on Reasonable Care and Skill) (L4)

CHAPTER 3
DUTIES OF RMPS TOWARDS THEIR PATIENT

22. Keeping appointments:

(A). An RMP shall endeavor to be prompt in attending to patients and should keep
in time with appointments or visiting/consultation hours. If the RMP is delayed for
a valid reason, the patient should be informed. (L1)

8
 (B) A RMP may also advise referral when necessary to another RMP who is
specialized in the treatment of the patient’s ailment. (L1)
(C) In case of emergency (life and limb saving procedure) an RMP shall provide
first aid and other services to the patient according to his expertise and the
available resources before referral. (L3)

23. Incapacity: A Registered Medical Practitioner having any incapacity (induced or

otherwise) detrimental to the patient or professional practice, which can affect his
decision-making or skill in treating the patient is not permitted to practice his
profession for the period of incapacity. Use of Alcohol or other intoxicants during
duty or off duty which can affect professional practice will constitute misconduct.
(L3, L4)

24. Confidentiality: Every communication between RMP and patients shall be kept
confidential. Such communication, whether personal, or related to health and
treatment, shall not be revealed unless required by the laws of the state, or if non-
disclosure may itself be detrimental to the health of the patient or another human
being. (L2, L3)

25. Truth-telling: The RMP should neither exaggerate nor minimize the gravity of a
patient’s condition. He/ She shall ensure that the patient or legally appointed
representative has such knowledge of the patient’s condition that can assist in
making decisions that will best serve the interests of the patient. (L1)

26. Patient care: A RMP is free to choose whom he will serve, except in case of a life-
threatening emergency. Having accepted a case, the RMP should neither neglect
the patient nor withdraw from the case without giving adequate notice to the patient
and his family. If a change of RMP is needed (for example, the patient needs a
procedure done by another RMP), consent should be obtained from the patient
himself or the guardian. The RMP who attends to the patient will be fully
accountable for his actions and entitled to the appropriate fees. In case of abusive,
unruly, and violent patients or relatives, the RMP can document and report the
behavior and refuse to treat the patient. Such patients should be referred for further
treatment elsewhere. (L2-L4)

9
27. Referral: Only such Follow up consultation should be planned as required by the
patient. Likewise, laboratory investigations ordered for the patient should be
justified. An update/summary of the clinical condition and reasons for referral must
be documented and provided at the referral. Specialist referral must be sought to
benefit only the patient and duly justified in medical documents (L2)

28. Signatures: All signatures in the notes, prescriptions, certificates, orders, referral
summaries etc, should carry the RMP’s Name and NMC Registration number.
Electronic generation of orders/prescriptions may help automation of this
information. (L1, L2)

29. Consultation by Telemedicine: Consultation through Telemedicine by the

Registered Medical Practitioner shall be permissible following the Telemedicine
Practice Guidelines (Telemedicine Guideline) (L1, L2)

CHAPTER-4
RESPONSIBILITIES OF RMPS TO EACH OTHER

30. Professional Integrity: In consultations, professional rivalry should not be indulged

in. All due respect is owed to the RMP in charge of the case, and no derogatory
statement or remark be made which would impair the confidence reposed in him by
the patient. For this purpose, professional discussions should nottake place in the
presence of the patient or family or legally appointed representative. The specialist
must provide the clinical opinion only to the RMP who referred the patient. Every
discussion/opinion regarding the patient should be kept confidential. If a referral is
sought by an RMP, it should be clarified if the specialist will take over the care of
the patient or if the patient will remain with the primary RMP. (L1, L2)

31. RMP as Locum: Whenever a RMP requests another RMP to attend to his patients
during his temporary absence from his practice, professional courtesy requires the
acceptance of such appointment only when the RMP can discharge the additional

10
 responsibility along with his /her other duties. The RMP acting under such an
appointment should give the utmost consideration to the interests and reputation of
the absent RMP and all such patients should be restored to the care of the latter
upon his/her return. (L1, L2)

32. Reporting and Inspection: When it becomes the duty of a RMP occupying an
official position to inspect and report on an illness or injury, he should communicate
this to the RMP in attendance to give him the option of being present. The RMP
occupying an official position should avoid making any derogatory remarks
regarding the diagnosis or the treatment plan adopted. (L1, L2)

CHAPTER 5

DUTIES OF RMPs TOWARDS THE PUBLIC AND ALLIED HEALTHCARE

PROFESSIONALS

33. Public Education and Awareness:

(A). RMPs, as good citizens, have a responsibility to disseminate scientific advice

on public health issues in the public interest without self-promotion. They should
particularly co-operate with the authorities in the administration of sanitary/public
health laws and regulations. (L1)

(B). RMP should enlighten the public concerning quarantine regulations and
measures for the prevention of epidemics and communicable diseases. At all times
the RMP should notify the constituted public health authorities of every case of
notifiable disease under his care, following the laws, rules, and regulations of the
health authorities. RMP needs to involve in public education and awareness
activities without involving in the advertisement. When an epidemic occurs, a RMP
provided with all the necessary medical protection and his own health permitting
should not abandon his duty for fear of contracting the disease himself. (L1, L2)
34. RMP as a team leader, should recognize the importance of teamwork and respect
the practice of different paramedical services. (L1)

11
35. RMPs and their families must not receive any gifts, travel facilities, hospitality, cash
or monetary grants, consultancy fee or honorariums, or access to entertainment or
recreation from pharmaceutical companies, commercial healthcare establishments,
medical device companies, or corporate hospitals. However, this does not include
salaries and benefits that RMPs may receive as employees of these organizations.
Also, RMPs should not be involved in any third-party educational activity like CPD,
seminar, workshop, symposia, conference, etc., which involves direct or indirect
sponsorships from pharmaceutical companies or the allied health sector.RMP
should be aware of the conflict of interest situations that may arise. The nature of
these relationships should be in the public domain and should not be in
contravention of any law, rule, or regulation in force. An RMP himself or as part of
any society, organization, association, trust, etc. should be transparent regarding
the relationship with the pharmaceutical and allied health sector industry. (L3)

36. RMPs may be required to file an affidavit regarding their financial earnings and or
benefits received in the past 5 past years from any pharmaceutical companies or
allied health sector. (L3)

37. Power to Draft guidelines: EMRB will draft the guidelines/codes etc on Generic
Drugs and Prescription, CPD guidelines and accreditation of organizations,
Telemedicine Guidelines, Code of Ethics, Guidelines on Penalties for Misconduct
including the monetary penalty, Advertisement Guidelines, End of Life guidelines,
Consent in Medical Practice, Guidelines on Research by RMPs, Guidelines on
Social Media Conduct of RMPs, Guidelines on Reasonable care, skill and
Guidelines on Interaction with Pharmaceuticals, as and when required and
amended from time to time by EMRB.

CHAPTER 6

PROFESSIONAL MISCONDUCT

38. Professional Misconduct: Any violation of these regulations, or other applicable Acts
related to medical practice which are in force, shall constitute professional
misconduct. By issuing these regulations, the EMRB, NMC, and the State Medical
Councils are in no way precluded from considering and dealing with any other form

12
 of professional misconduct by registered medical practitioners which do not fall
under any of the categories mentioned in the regulations or guidelines or codes
appended. RMPs bound by these regulations will not engage in any activities which
violate these regulations and should not enter into any employment or other contract
that engages in activities in violation of any of these regulations. Convictionof RMP
in cases of a cognizable offence involving moral turpitude may result in the
suspension of license to practice.

39. Procedure for a complaint of professional misconduct

A. The aggrieved person will file the complaint to the State Medical council through the website
portal/offline, ordinarily within 2 years of the cause of action. (The complaint will belodged in
the SMC where RMP is located at the time of cause of action, both in teleconsultation or in
person consultation)

B. Where the aggrieved person is unable to make a complaint on account of physical or mental
incapacity, a complaint may be filed by —

a. a family member or relative or friend; or

b. the guardian or authority under whose care treatment was received

c. the legal heir or guardian in case of death of the patient

C. The EMRB or state medical council can initiate a suo-moto case against any RMP
taking cognizance of gross misconduct. The suo-moto complaint will be taken upif
a simple majority of the EMRB or State medical council members agrees to proceed
against the RMP

40. Manner of Inquiry into the complaint

(A) At the time of filing the complaint, the complainant shall submit to the EMRB or state
medical council five copies or for offline applications (till the whole process is made online)
of the complaint along with supporting documents and the names and addresses of the
witnesses.

13
(B) On receipt of the complaint, the council shall send one of the copies received to the
respondent within 15 working days. For online complaints, the State Medical
Council/EMRB/NMC will send an e-copy/physical copy of the complaint to the respondent.

(C) The respondent shall file his reply to the complaint along with his list of documents,
and names and addresses of witnesses, within a period not exceeding 15 working days
from the date of receipt of the documented complaint

(D). The state medical council or EMRB/NMC shall conduct an inquiry into the complaint
following the principles of natural justice.

(E) On receipt of the complaint, the State Medical Council shall refer the case for review
to the designated committee, with assistance from a panel of experts, if required,
specifically formed for this purpose in the stipulated time.

(F) If more than one hearing is required, The /State Medical Councilor EMRB/NMC shall
have the right to terminate the inquiry proceedings or to give an ex-parte decision on the
complaint if the complainant or respondent fails, without sufficient cause, to present herself
or himself for two consecutive hearings or three hearings in total convened by the /SMC
or EMRB/NMC. In such situations, the termination or ex-parte order may not be passed
without giving a notice fifteen days in advance to the party concerned.

(G) The parties shall not be allowed to bring in any lawyer to represent them in their case
at any stage of the proceedings before the state medical council or EMRB/NMC.

(H) In conducting the inquiry, a quorum shall be ensured.

(I). No new documents or certificates or evidence or witness will be entertained from either
of the parties once the proceedings are initiated (meaning -after the parties have been
called for a hearing) unless its admission is cleared by the majority of the members. The
complaint cannot be withdrawn after it is admitted by the SMC or EMRB/NMC.

(J). The State Medical Council or EMRB/NMC may either of its motion or on an application
made by either of the parties have the power to change the subject matter experts, if
appointed, by providing a valid reason.

41. Disposal of the complaints: The State Medical Council or EMRB/NMCafter giving the parties
concerned an opportunity of being heard, may make any of the following recommendations:

14
 1) dismiss the complaint

2) reprimand or warn the RMP

3) recommend counseling to the RMP

4) an alternative penalty can be considered

(Guidelines for alternative penalties can be given by EMRB as and when required)

5) may restrain the RMP from performing the clinical procedure(s) or examination as
deemed fit. Holding Suspension i.e. restraining RMP from practice until the case is
decided- only with full consensus

6) Suspend the RMP from practice for a temporary period as it may deem fit by
removing the name of the RMP temporarily from the National Medical Register

7) Award monetary penalty to aggrieved party as it deems fit as per Section 30 of the
NMC Act, 2017 can be given by EMRB only as and when required.

8) SMC can charge monetary penalty up to 10 times of the license fee in case it is
found during misconduct complaint case that the RMP has not taken license to
practice in that state.

9) May direct the RMP to undertake specific training courses related to the
misconduct/some certificate course/ethics sensitization etc.

10) Punishment of Permanent removal from NMR under exceptional circumstances by

SMC must be ratified by EMRB.

42. Prohibition of review of the order: SMC or EMRB/NMC will not have the power to review
its order, and the order will be executed only after the expiry of the period of appeal.

15
43. Power of the SMC/EMRB. The SMC and EMRB/NMC shall have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908 while trying a complaint against an
RMP in respect of the following matters, namely: —

1) the summoning and enforcing the attendance of any defendant or witness and
examining the witness on oath.

2) requiring the discovery and production of any document or other material object as
evidence.

3) receiving evidence on affidavits.

4) the requisitioning of the report of the concerned analysis or test from the appropriate
laboratory or any other relevant source.

5) issuing of commissions for the examination of any witness, or document; and any
other matter which may be prescribed by the Central Government.

6) penalty so awarded and confirmed to the RMP by State Medical Council or

EMRB/NMC shall be publicized widely on its website and other platforms as they
deem fit and communicated to the employer, the hospital /healthcare institution of
the RMP and respective Medical Associations/Societies/Bodies.

44. Delay in decision: Where the EMRB is informed that any complaint against a RMP has not
been decided by a State Medical Council within six months from the date of the complaint, and the
EMRB has reason to believe that there is no justified reason for not deciding the complaint within
the said prescribed period, then EMRB can direct the SMC to hear the case daily until the case is
closed. The reasons for not deciding the case within the stipulated time shall be mentioned in the
order of the SMC or withdraw the complaint pending with the concerned State Medical Council
immediately.

45. Appeal

1) A RMP who is aggrieved by the decision of the State Medical Council shall have
the right to file an appeal to the Ethics and Medical Registration Board (EMRB)

16
 within 60 days from the date of receipt of the order passed by the said State Medical
Council: Provided that the Ethics and Medical Registration Board may if it is
satisfied that the appellant was prevented by sufficient cause from presenting the
appeal within the aforesaid period of 60 days, allow it to be presented within a
further period of 60 days.

2) A RMP who is aggrieved by the decision of the Ethics and Medical Registration
Board may prefer an appeal before the National Medical Commission within 60 days
from the date of passing of an order by the EMRB.

3) Order of SMC will become operational after the expiry of the period of appeal
(60days+60days). Once in appeal, the order of SMC will be deemed stayed unless
decided otherwise by EMRB/NMC.

17
 Guidelines - 1
GENERIC MEDICINE AND PRESCRIPTION GUIDELINES

Preamble:
India’s out-of-pocket spending on medications accounts for a major proportion of public
spending on health care. Further, generic medicines are 30 to 80 % cheaper than branded
drugs. Hence, prescribing generic medicines may overtly bring down health care cost and
improve access to quality care.

Generic medicines vs Generic names:

Generic Name:
Non-Proprietary or approved name of a drug is also known as the generic name of the
drug.
Non-proprietary name is the name accepted by a competent scientific body/ regulatory authority.

Generic drug/medicine:
A generic drug is defined as a “drug product that is comparable to brand/reference
listed product in dosage in dosage form, strength, route of administration, quality and performance
characteristics, and intended use”

Branded Generic drug:

A branded generic drug is one which has come off patent and is manufactured by drug
companies and sold under different companies' brand names. These drugs may be less
costly than the branded patent version but costlier than the bulk manufactured generic
version of the drug. There is less regulatory control over the prices of these “branded”
generic drugs.

Guidance to RMPs:
1. Prescribe drugs with “generic”/“non-proprietary”/“pharmacological” names only

1.1. In the case of drugs with a narrow therapeutic index, biosimilars, and similar other
exceptional cases, this practice can be relaxed.

2. Prescribe drugs rationally and optimally

2.1. Both overprescribing and under prescribing are to be avoided keeping in mind
possible drug interactions

3. Fixed-dose combinations are to be used judiciously

3.1. Only approved and rational fixed-dose combinations are to be prescribed

4. Advocate for hospitals and local pharmacies to stock generic drugs. Prescribe only
those generic medicines that are available in the market and accessible to the patient

5. Avoid prescribing “branded” generic drugs.

6. Encourage patients to purchase drugs from Jan Aushadhi kendras and other generic
pharmacy outlets

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7. Educate medical students, patients, and the public regarding the equivalence of generic
medicine with their branded counterparts

8. Should actively participate in programs related to promotion and access to generic

medicines

9. MBBS & PG students will be trained in the value of prescribing generic medicine

10. Written Prescriptions should be legible and preferably in full CAPITALS to avoid
misinterpretation. As far as possible prescriptions should be typed and printed to avoid
errors.

19
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 11
PETITIONER:
ACHUTRAO HARIBHAU KHODWA

Vs.

RESPONDENT:
STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT: 20/02/1996

BENCH:
KIRPAL B.N. (J)
BENCH:
KIRPAL B.N. (J)
BHARUCHA S.P. (J)

CITATION:
1996 SCC (2) 634 JT 1996 (2) 624
1996 SCALE (2)328

ACT:

HEADNOTE:

JUDGMENT:
J U D G M E N T
Kirpal, J.

The appellants are aggrieved by the judgment of the

Aurangabad Bench of the Bombay High Court which has reversed
a decree for Rs.36,000/- passed by the Civil Judge, Second
Division, Aurangabad, as damages on account of the death of
one Chandrikabai who was the wife of appellant no.1 and the
mother of appellant nos. 2 to 5, after she had undergone a
sterilization operation at the Civil Hospital, Aurangabad.
The case of the appellants before the trial court was that
the deceased Chandrikabai was admitted in the Civil Hospital,
Aurangabad on 10th July, 1963, for delivery of a child. This
maternity hospital is attached to the Medical College at
Aurangabad and respondent no.2 was working in the department
of Obstetrics and Gynecology as a doctor and it is she who
attended on Chandrikabai. Respondent no.3 was the Medical
Officer of the said hospital while respondent no.4 was the
Dean of Medical College, Aurangabad. Chandrikabai delivered a
male child on 10th July, 1963. As she had got herself admitted
to this hospital with a view to undergo a sterilization
operation after the delivery, the said operation was performed
by respondent no.2 on 13th July, 1963. Soon thereafter
Chandrikabai developed high fever and also had acute pain which
was abnormal after such a simple operation. Her condition
deteriorated further and on 15th July, 1963 appellant no.1
approached respondent no.3 and one Dr. Divan, PW-2, who was a
well-known surgeon and was attached to the hospital, but was
not directly connected with the Gynecological department. At
the insistence of appellant no.1 Dr. Divan examined
Chandrikabai on 15th July, 1963, and seeing her condition, he
is alleged to have suggested that the sterilization operation
which had been performed should be re-opened. This suggestion
was not acted upon by respondent nos.2 and 3 and the condition
of Chandrikabai became very serious. On 19th July, 1963, Dr.
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Divan, on being called once again, re-opened the wound of
the earlier operation in order to ascertain the true cause
of the seriousness of the ailment and to find out the cause
of the worsening condition of Chandrikabai. According to the
appellants, respondent nos. 2 and 3 assisted Dr. Divan in this
Operation. Dr. Divan, as a result of the second operation,
found that a mop (towel) had been left inside the body of
Chandrikabai when sterilization operation was performed on her.
It was found that there was collection of pus and the same was
drained out by Dr. Divan. Thereafter, the abdomen was closed
and the second operation completed. Even, thereafter the
condition of Chandrikabai did not improve and ultimately she
expired on 24th July 1963.
Alleging that Chandrikabai was working as a teacher in
a government school and her salary augmented the total income
of the family, it was pleaded that the death of Chandrikabai
was caused due to the negligence of respondent no.2 who had
performed the sterilization operation on 13th July 1963, as
well as the irresponsible behavior of respondent no.3. The
appellants also alleged that the hospital lacked adequate
medical aid and proper care and there was gross dereliction
of duty on the part of the officers of the Government Civil
Hospital which directly resulted in the death of Chandrikabai
and, therefore, the appellants were entitled to recover damages
from the Government of Maharashtra (respondent no.1) as well
as respondent nos.2 to 4. The appellants claimed total damages
of Rs.1,75,00O/-. It may here be noticed that the suit was
commenced with the appellants’ filing application for
permission to sue in form pauperis and, on the same being
allowed, the same was converted to Special Civil Suit no.5
of 1965.
Respondents 1 and 4 filed a common written statement
contending that the appellants’ suit was false. It was denied
that there was any negligence in the performance of the
sterilization operation on 13th July 1963, at the hands of
respondent no. 2. In fact the case of the respondents was that
after the sterilization operation on 13th July, 1963, the
condition of Chandrikabai had improved. All allegations of
negligence etc. were specifically denied. In addition thereto,
respondents 2 and 3 filed separate written statements in which
they also denied any negligence on their part. Respondent no.2
denied having left any mop in the abdomen of Chandrikabai and,
in the alternative, pleaded that even if such a mop was left
inside the body, the same could not have, either directly or
remotely, caused the death. Respondent no.3 also denied the
recovery of the mop from the abdomen and generally supported
the case of the other respondents.
In view of the pleadings of the parties the Civil Judge
framed as many as II issues which are as follows:
1. Do plaintiffs prove that the
defendant no.2 performed the
operation without due care,attention
and caution and in themost negligent
manner?
2. Do plaintiffs prove that a mopwas
left in the abdomen of thedeceased
Chandrikabai during the first
operation, and if so, doplaintiffs
further prove that itwas so left as
a result ofnegligence, lack of care
and insufficient diligence in the
operation performed by defendant
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 11
no.2?
3. Do plaintiffs prove that as a
result of the mop remaining inside
the body of Chandrikabai during the
first operation by defendant no.2,a
severe pain was caused to her
deteriorating her health and thatthe
said mop disturbed the internal
organism of the body and resulted
ultimately in the death of
Chandrikabai on 24th July 1963."
4. Do plaintiff’s prove that the
defendants no.2 and 3 did not take
proper care of Chandrikabai in the
post operation stage as per details
stated in para 7 of the plaint.
5 Do plaintiff’s prove that the
defendant no.4 also did not takeany
proper and necessary steps whenhe was
instructed about the painreceived by
Chandrikabai?
6. Do they prove that there was
mismanagement and careless behavior
in the hospital and negligence by
defendant no.3 in the removal ofthe
same as stated in last part ofpara 7
and that it aggravated thesituation
resulting in the death of
Chandrikabai?
7. Do the plaintiffs prove that the
death of Chanbdrikabai was causeddue
to failure of duty on the part of
hospital authorities and their
dereliction of duty and hence all
defendants are liable for the same?
8. Do plaintiffs prove the various
details of compensation as statedin
para 9 of the plaint?
9. To what amount are plaintiffs
entitled on account of damages?
10. What order about the recoveryof
the court fees?
11. What decree and order?
In support of their case the appellants, apart from
examining appellant no.1 and his mother-in-law, also relied
upon the evidence of Dr. Divan PW-2. In addition thereto the
appellants also examined, on commission, Dr. Ajinkya who was
a Gynecologist and Obstetrician of Bombay. According to Dr.
Divan, after the sterilization operation Chandrikabai had
suffered from post operative peritonitis. This was due to a
mop which had remained inside the peritonial cavity for a
number of days and inflammatory condition had reached a stage
from which recovery was very difficult. After the removal of
the mop Dr. Divan said that he saw the condition of the
intestine which continued to remain paralysed. The treatment
of peritonitis was started from 15th July, 1963 and in his
opinion the death of the patient was due to the complications
following the leaving of the mop inside the abdomen. The other
expert witness Dr. Ajinkya also came to the same conclusion,
though his statement was recorded without his having the
benefit of seeing the case papers. On behalf of the
respondents, apart from themselves, two experts, namely, Dr.
Marwa, Professor of Surgery, Medical College, Aurangabad and
Dr.B.V. Purandare, a leading Obstetrician and Gynecologist of
Bombay were examined. The
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trial court did not rely upon the evidence of the experts
examined by the respondents because it came to the conclusion
that the original documents and case papers had been filed
late, some relevant entries had also been tampered with and
it was only the typed papers, which were copies of the tampered
documents, which were supplied to the respondents’ expert
witnesses for their opinion. The trial court, while accepting
and relying on the evidence of Dr. Divan, also observed that
the effort of respondents 2 and 3 was to throw the blame on
Dr. Divan. According to them, they had prohibited Dr. Divan
from performing the second operation and the said respondents
even denied that a mop was recovered from the abdomen of
Chandrikabai. The trial court decided all the issues, except
issues 5 and 6, in favour of the appellants and passed a
decree for Rs.36,000/- against respondent nos. 1 to 3, but the
suit against respondent no.4 was dismissed.
The State as well as the respondents 2 and 3 filed
appeals to the High Court. In a marathon judgment of over
300 pages the High Court discussed all the evidence and firstly
came to the conclusion that, in law, the Government could not
be held liable for tortious act committed in a hospital
maintained by it. Thereafter, it held that though there was no
justification for the delay in the authorities’ concerned in
supplying the case papers to the appellants, no prejudice had
been caused. The High Court did observe that there were some
erasure marks and rubbing off of the entries in the original
case papers, but held that it was not possible to infer
therefrom that the registers had been tampered with and that
there was no material before the trial court to hold that
the case papers were tampered with by respondents 2 to 4. The
High Court also noticed that the opinion of the experts was
conflicting. Whereas according to Dr. Divan and Dr. Ajinkya,
Chandrikabai had peritonitis even before the second operation
on 19th July, 1963, and she died because of the same, according
to Dr. Purandare, Chandrikabai was only suffering from acute
gastic disorder till 19th July, 1963, and it was necessary
for the doctors to have waited after removal of the pus on that
day and the second operation was possibly not necessary. Dr.
Purandare deposed that in the absence of a post mortem
examination the exact and correct cause of death could not be
determined though, by looking at the case papers, the cause
of death was peritonitis with septicaemia following the second
operation. The opinion of Dr. Marwa was also to the same effect.
The High Court while accepting the evidence of Dr. Purandare
came to the conclusion that it was difficult to hold that
anything that was done during the sterilization operation, or
thereafter, had definitely caused the death of Chandrikabai.
While, holding that respondent no.2 had definitely been
negligent in leaving a mop inside the abdomen of Chandrikabai,
it held that the appellants had failed to prove that the
negligence of leaving the mop inside the abdomen had caused
the death of Chandrikabai. It, therefore, concluded that none
of the respondents could be held liable for negligence. It,
accordingly, allowed the appeals and dismissed the suit.
Two questions which arise for consideration in this
appeal are whether the State of Maharashtra can be held liable
for any negligence of its employees and secondly whether the
respondents or any one of them acted negligently in the
discharge of their duties.
Decisions of this Court now leave no scope for arguing
that the State cannot be held to be variously liable if it
is found that the death of Chandrikabi was caused due to
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negligence on the part of its employees.
In State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR
1962 SC 933) the question arose with regard to the various
liability of the State of Rajasthan. In that case a vehicle
owned by the State of Rajasthan, which was being driven by
its driver, met with an accident which resulted in the death
of one person. The death was caused due to the negligence of
the driver. The two contentions of the State of Rajasthan were
that under Article 300 of the Constitution, the State would
not be liable, as the corresponding Indian State would not have
been liable if the case had arisen before the Constitution came
into force. Secondly, it was contended that the jeep which
was driven rashly and negligently was being maintained by the
State in exercise of its sovereign powers and was not a part
of any commercial activity of the State. Rejecting the said
contention this Court held that "the State should be as much
liable for tort in respect of a tortious act committed by its
servant within the scope of his employment and functioning as
such, as any other employer. "This question again came up for
consideration in Kasturi Lal Ralia Ram Jain Vs. The State of
Uttar Pradesh. (AIR 1965 SC 1039) and which has been referred
to by the High Court in the present case while coming to the
conclusion that the State of Maharashtra cannot be held to
be variously liable. In Kasturi Lal’s case gold had been seized
and the same had been kept in a malkhana. The appellant
demanded the return of this gold but the same was not returned.
It appeared that the same had been misappropriated by the
person in-charge of the malkhana. The respondents therein
claimed that it was not a case of negligence by the Police
officers and even if negligence was proved the State could not
be held to be liable for the said loss. While holding that
there was negligence on the part of the police officers, this
Court denied relief by observing that the powers which were
exercised by the police officers could be properly
characterized as sovereign powers and, therefore, the claim
could not be sustained. This Court distinguished the decision
in Vidhyawati’s case by observing:
"In dealing with such cases, it
must be borne in mind that when the
State pleads immunity againstclaims
for damages resulting from injury
caused by negligent acts of its
servants, the area or employment
referable to sovereignpowers must be
strictly determined. Before such a
plea is upheld, theCourt must always
find that the impugned act was
committed in the course of an
undertaking or employment which is
referable to the exercise of
sovereign power, orto the exercise of
delegatedsovereign power. "
Explaining the distinction between the two types of cases,
it was also observed as follows;
"It is not difficult to realize the
significance and importance ofmaking
such a distinction particularly at
the present timewhen, in pursuit of
their welfare ideal, the Government
of the States as well as the
Government of India naturally and
legitimately enter
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 11
into many commercial and other
undertakings and activities which
have no relation with thetraditional
concept of governmentalactivities in
which the exercise ofsovereign power
is involved. It isnecessary to limit
the area of these affairs of the
State inrelation to the exercise of
sovereign powers, so that if actsare
committed by Governmentemployees in
relation to other activities which
may be conveniently described as
nongovernmental or non-sovereign,
citizens who have a cause of action
for damages should not be precluded
from making their claim against the
State, That is the basis on whichthe
area of the State immunity against
such claims must belimited; and this
is exactly whathas been done by this
Court in itsdecision in the case of
State ofRajasthan."
Two recent decisions where the State has been held to be
variously liable on account of the negligent acts of its
employees are those of N. Nagendra Rao and Company Vs. State
of Andhra Pradesh (1994 (6) SCC 205) and State of Maharashtra
& Ors. Vs. Kanchanmala Vijay Singh Shrike & Ors. ( JT 1995
SC 155). In Nagendra Rao’s case some goods had been conficated
pursuant to an order passed under Section 6 A of the Essential
Commodities Act, 1955. The said order was annulled but due to
the negligence of the officers concerned goods were not found
to be of the same quality and quantity which were there at
the time of its confiscation. The owners of the goods refused
to take delivery and fileda suit claiming value of the goods
by way of compensation. The High Court of Andhra Pradesh
held that the State was not variously liable for negligence of
its officers in charge of their statutory duties. Negativing
this, this Court while allowing the appeal observed at page
235 as follows:
"In Welfare State, functions of the
State are not only defence of the
country or administration ofjustice
or maintaining law and order but
extends to regulating andcontrolling
the activities ofpeople in almost
every sphere, educational,
commercial, social, economic,
political and even marital. The
demarcating line between sovereign
and nonsovereign powers for which
no rational basis survives has
largely disappeared. Therefore,
barring functions such as
administration of justice,
maintenance of law and order and
repression of crime etc. which are
among the primary and inalienable
functions of a constitutional
government, theState cannot claim
any immunity.The determination of
various
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 11
liability of the State beinglinked
with negligence of its officer, if
they can be suedpersonally for which
there is nodeath of authority and the
law of misfeasance in discharge of
public duty having marched ahead,
there is no rational for the
propositionthat even if the officer
is liablethe State cannot be sued.
The liability of the officer
personally was not doubted even in
Viscount Canterbury. But the Crown
was held immune on doctrine of
sovereign immunity. Since the
doctrine has become outdated and
sovereignty now vests in thepeople,
the State cannot claim any immunity
and if a suit ismaintainable against
the officerpersonally, than there is
no reasonto hold that it would not
bemaintainable against the State."
A similar view has been taken in Kanchanmala Vijaysingh’s
case (supra) where, dealing with a claim for compensation
arising as a result of an accident with a jeep belonging to
the State, it was observed as follows:
"Traditionally, before court
directed payment of tort
compensation, the claimant had to
establish the fault of the person
causing injury or damage. But oflate,
it shall appear from different
judicial pronouncements that the
fault is being read as because of
someone’s negligence orcarelessness.
Same is the approachand attitude of
the courts whilejudging the various
liability of the employer for
negligence of the employee.
Negligence is the omission to do
something which areasonable man is
expected to do ora prudent man is
expected not todo. Whether in the
facts and circumstances of a
particular case, the person causing
injury to theother was negligence or
not has to be examined on the
materialsproduced before the Court.
It is the rule that an employer,
thoughguilty of no fault himself, is
liable for the damage done by the
fault or negligence of his servant
acting in the course of his
employment. In some case, it can be
found that an employee was doing an
authorised act in an unauthorisedbut
not a prohibited way. The employer
shall be liable for suchact, because
such employee wasacting within the
scope of his employment and in so
acting done something negligent or
wrongful. Amaster is liable even for
acts
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 11
which he has not authorisedprovided
they are so connected withacts which
he has been so authorised. On the
other hand, ifthe act of the servant
is not evenremotely connected within
the scope of employment and is an
independentact, the master shall not
beresponsible because the servant is
not acting in the course of his
employment but has gone outside."
The High Court has observed that the government cannot
be held liable in tort for tortious acts committed in a hospital
maintained by it because it considered that maintaining and
running a hospital was an exercise of the State’s sovereign
power. We do not think that this conclusion is correct.
Running a hospital is a welfare activity undertaken by the
government but it is not an exclusive function or activity of
the government so as to be classified as one which could be
regarded as being in exercise of its sovereign power. In
Kasturi Lal’s case itself, in the passage which has been
quoted hereinabove, this Court noticed that in pursuit of the
welfare ideal the government may enter into many commercial
and other activities which have no relation to the
traditional concept of governmental activity in exercise of
sovereign power. Just as running of passenger buses for the
benefit of general public is not a sovereign function,
similarly the running of a hospital, where the members of the
general public can come for treatment, cannot also be regarded
as being an activity having a sovereign character. This being
so, the State would be variously liable for the damages which
may become payable on account of negligence of its doctors or
other employees.
Before considering whether the respondents in the present
case could be held to be negligent, it will be useful to see
as to what can be regarded as negligence on the part of a
doctor. The test with regard to the negligence of a doctor was
laid down in Bolam Vs. Friern Hospital Management Committee (
[1957] 1 WLR 582 ). It was to the effect that a doctor is not
guilty of negligence if he acted in accordance with a practice
accepted as proper by a responsible body of medicalmen skilled
in that particular art. This principle in Bolam’s case has
been accepted by the House of Lords in England as applicable
to diagnosis and treatment. (See Sidaway Vs. Board of Governors
of Bethlem Roval Hospital ( [1985] A.C. 871 at 881 ) Dealing
with the question of negligence, the High Court of Australia
in Rogers Vs. Whitaker ( [1993] 109 A.L.R. has held that the
question is not whether the doctor’s conduct accords with
the practice of a medical profession or some part of it, but
whether it conforms to the standard of reasonable care demanded
by the law. That is a question for the court to decide and the
duty of deciding it cannot be delegated to any profession or
group in the community. It would, therefore, appear that the
Australian High Court has takena somewhat different view than
the principle enunciated in Bolam’s case. This Court has had
an occasion to go into this question in the case of Dr.Laxman
Balkrishan Joshi Vs. Dr. Trimbak Bapu Godbole and Anr. (AIR
1969 SC 128 ). In that case the High Court had held that the
death of the son of the claimant was due to the shock resulting
from reduction of the patient’s fracture attempted by the
doctor without taking the elementary caution of giving
anaesthetic. In this context, with reference to the duties
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 11
of the doctors to the patient this court, in appeal, observed
as follows:
"The duties which a doctor owes to
his patient are clear. A person who
holds himself out ready to give
medical advice and treatment
impliedly undertakes that he is
possessed of skill and knowledgefor
the purpose. Such a person when
consulted by a patient owes him
certain duties, viz., a duty ofcare
in deciding whether toundertake the
case, a duty of care in deciding
whether treatment to give or a duty
of care in theadministration of that
treatment. Abreach of any of those
duties gives a right of action for
negligence to the patient. The
practitioner mustbring to his task a
reasonable degree of skill and
knowledge and must exercise a
reasonable degreeof care. Neither
the very highestnor a very low degree
of care andcompetence judged in the
light ofthe particular circumstances
of each case is what the law
requires.
The above principle was again applied by this court in
the case of A.S. Mittal and Ors. vs. State of U.P. and Ors.
(AIR 1989 SC 1570). In that case irreparable damage had been
done to the eyes of some of the patients who were operated upon
at an eye camp. Though this Court refrained from deciding, in
that particular case, whether the doctors
were negligent, it observed "A mistake by a medical
practitioner which no reasonably competent and a careful
practitioner would have committed is a negligent one." The
Court also took note that the law recognizes the dangers which
are inherent in surgical operations and that mistakes will
occur, on occasions, despite the exercise of reasonable skill
and care. The Court further quoted Street on Torts (1983) (7th
Edn.) wherein it was stated that the doctrine of res ipso
loquitur was attracted: "....Where an unexplained accident
occurs from a thing under the control of the defendant, and
medical or other expert evidence shows that such accidents
would not happen if proper care were used, there is at least
evidence of negligence for a jury." The latest case to which
reference can be made is that of Indian Medical Association
Vs. V.P. Shantha and Ors. (1995) 6 SCC 651). The question which
arose in this case was whether the Consumer Protection Act,
1986, applied to medical practitioners, hospitals and nursing
homes. It was held in this case that medical practitioners were
not immune from a claim for damages on the ground of
negligence. The Court also approved a passage from Jackson &
Powell on Professional Negligence and held that "the approach
of the Courts is to require that professional men should possess
a certain minimum degree of competence and that they should
exercise reasonable care in the discharge of their duties.
In general, a professional man owes to his client a duty in
tort as well as in contract to exercise reasonable care in
giving advice or performing services."
The skill of medical practitioners differs from doctor
to doctor. The very nature of the profession is such that there
may be more than one course of treatment which may be advisable
for treating a patient. Courts would indeed be
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 11
slow in attributing negligence on the part of a doctor if he
has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with regard
to the course of action to be taken by a doctor treating a
patient, but as long as a doctor acts in a manner which is
acceptable to the medical profession, and the Court finds that
he has attended on the patient with due care skill and diligence
and if the patient still does not survive or suffers a
permanent ailment, it would be difficult to hold the doctor
to be guilty of negligence.
In cases where the doctors act carelessly and in a manner
which is not expected of a medical practitioner, then in such
a case an action in torts would be maintainable. As held in
Laxman’s case (supra) by this Court a medical practitioner has
various duties towards his patient and he must act with a
reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. This is the least which a patient
expects from a doctor.
In the present case the facts speak for themselves.
Negligence is writ large. The facts as found by both the courts,
in a nutshell, are that Chandrikabai was admitted to the
government hospital where she delivered a child on 10th July,
1963. She had a sterilization operation on 13th
July, 1963. This operation is not known to be serious in nature
and in fact was performed under local anesthesia. Complications
arose thereafter which resulted in a second operation being
performed on her on 19th July, 1963. She did not survive for
long and died on 24th July, 1963. Both
Dr. Divan and Dr. Purandare have stated that the cause of death
was peritonitis. In a case like this the doctrine of res ipso
loquitur clearly applies. Chandrikabai had had a minor
operation on 13th July, 1963 and due to the negligence of
respondent no.2 a mop (towel) was left inside her peritonial
cavity. It is true that in a number of cases when foreign
bodies are left inside the body of a human
being either deliberately, as in the case of orthopaedic
operations, or accidentally no harm may befall the patient,
but it also happens that complications can arise when the
doctor acts without due care and caution and leaves a foreign
body inside the patient after performing an operation and it
suppurates. The formation of pus leaves no doubt that the mop
left in the abdomen caused it, and it was the pus formation
that caused all the subsequent difficulties. There is no
escape from the conclusion that the negligence in leaving the
mop in Chandrikabai’s abdomen during the first operation led,
ultimately, to her death. But for the fact that a mop was left
inside the body, the second operation on 19th July, 1963 would
not have taken place. It is the leaving of that mop inside the
abdomen of Chandrikabai which led to the development of
peritonitis leading to her death. She was admitted to the
hospital, on 10th July, 1963 for a simple case of delivery
followed by a sterilization operation. But even after a normal
delivery she did not come out of the hospital alive. Under
these circumstances, and in the absence of any valid
explanation by the respondents which would satisfy the court
that there was no negligence on their part, we have no
hesitation in holding that Chandrikabai died due to negligence
of respondent nos. 2 and 3.
Even if it be assumed that it is the second operation
performed by Dr. Divan which led to the peritonitis, as has
been deposed to by Dr. Purandare, the fact still remains that
but for the leaving of the mop inside the peritonial cavity,
it would not have been necessary to have the second operation.
Assuming even that the second operation was done
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negligently or that there was lack of adequate care after
the operation which led to peritonitis, the fact remains that
Dr. Divan was an employee of respondent no.1 and the State must
be held to be variously liable for the negligent acts of its
employees working in the said hospital. The claim of the
appellants cannot be defeated merely because it may not have
been conclusively proved as to which of the doctors employed
by the State in the hospital or other staff acted negligently
which caused the death of Chandrikabai. Once death by
negligence in the hospital is established, as in the case here,
the State would be liable to pay the damages. In our opinion,
therefore, the High Court clearly fell in error in reversing
the judgment of the trial court and in dismissing the
appellants’ suit.
For the aforesaid reasons, this appeal is allowed, the
judgment of the High Court of Bombay under appeal is set aside
and the judgment and decree of the trial court is restored.
The appellants will also be entitled to costs throughout.
2021 INSC 801
REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 1658 OF 2010

BOMBAY HOSPITAL & MEDICAL RESEARCH .....APPELLANT(S)

CENTRE

VERSUS

ASHA JAISWAL & ORS ......................................................................... RESPONDENT(S)

WITH

CIVIL APPEAL NO. 2322 OF 2010

JUDGMENT

HEMANT GUPTA, J.

1. The present appeals are directed against an order passed by the

National Consumer Disputes Redressal Commission 1 on 06.01.2010

against the appellants i.e., Bombay Hospital & Medical Research

Centre2 and Dr. C. Anand Somaya3, directing to pay a sum of Rs.

14,18,491/- along with interest @ 9% p.a. from the date of filing of

the complaint till the date of payment.

1 For short, the ‘Commission’

2 For short, the ‘Hospital’
1
3 For short, the ‘Doctor’

2
2. The complaint was filed before the Commission by the legal heirs4 of

the deceased - patient Dinesh Jaiswal5, alleging medical negligence

on the part of the Hospital and the Doctor in treating the patient.

The patient was admitted to the Hospital on 22.04.1998 and

breathed his last on 12.06.1998. The Hospital charged a sum of Rs.

4,08,800/- for the treatment of the patient during the period of his

admission in the Hospital. The said amount is included in and is part

of the amount of compensation awarded against the appellants

herein.

3. The patient was taking treatment since 1990 for having difficulties

in walking due to the pain and discomfort in legs. For his complaint

of inability to walk, a Colour Doppler Test was conducted on

13.04.1998 at Khemuka X-Ray & Ultrasound Clinic, Nagpur which

detected the following:

“Aneurismal dilatation of the lower abdominal aorta just

above bifurcation is seen. The aneurism measures 5.4 x 2.6
in its maximum dimensions.
Irregular thrombus is seen within the aneurism on colour flow
studies.
Prostate is normal in echo – pattern and measures 4 x 3 x
3cms. Prostatic capsule is intact. Urinary bladder is normal
in capacity and contour. Post void residual urine is not
significant.
Impression: Mild hepatomegaly with aneurism of lower
abdominal aorta just above the bifurcation.”

4. Dr. K.G. Deshpande Memorial Center, Nagpur was consulted by the

4 For short, the ‘Complainant’

5 For short, the ‘patient’

3
 patient on 15.04.1998 and Dr. Deshpande diagnosed the following:

“A case of Abd Aortic Aneurysum

Involvement on left side
with Left PVB (Embolism)
H/O Trauma 1983,
Pain Left LL 1990 S/O Embolism
Vascular Duplex Seen S/O Large Abd. A. Aneurysum

6*3*5.1cm
Adv- Urgent Surgical repair of the aneurysum”

5. After diagnosis, Dr. Deshpande referred the patient to the appellant-

Doctor who is a Vascular Surgeon. The patient consulted the appellant-

Doctor on 21.4.1998. The Doctor ordered the admission of the patient

as an urgent case of aorta aneurysum. On 22.4.1998, the Doctor

advised urgent DSA/CAT Scan [Digital Sub-Traction Angiography

and Computerized Axial Tomography] and surgery after noticing the

following physical conditions:

“A 42 years old male with aorta pain left lower limb and right
leg below knee. Gradual Claudication
BP – 100/80
Ischaemic changes both lower limbs. Seen with impending
Gangrene
Both legs left muscles are tested.
………………………………….”

6. The Doctor after examining the patient recorded that there were

ischemic changes in both lower limbs and also noted an impending

gangrene. Subsequent to the pre-operative preparations, surgery was

conducted on 23.04.1998 by a team of surgeons including Dr.

4
 Partha and Dr. Bindra, led by the appellant-Doctor. The operation

notes read as thus:

“On inspection there was a huge aneurysum on the latral

aspect on left side arising infra renal.

It was densely adherent to the surrounding structure. The

aneurysum was directed out. The tape was passed around the
left Renal artery/vein for retraction. A tape was passed
around the aorta just below the renal artery and above the
aneurysum. Both the common iliac arteries were exposed.
Tapes were passed around both the iliac arteries.

After achieving proper exposure/slinging around all the

vessels. The aorta was iron clamped just infra-renally. The
aneurysum opened out. The aorta transected and both illiacs
transected. (A PTFE ‘Y’ Limb Graft) was sutured in place. The
short main limb to the aorta using continuous prolure and both
the limbs of the graft were sutured to the common iliacsend to
end anastomosis on right side. After checking the flow in the
graft after suture the upper end the lower anastomosiswere
done.

On the left side, the side of the graft was sutured the end of the
common iliac. The limb of the graft further brought down
through a tunnel to the femoral artery and the end of the
graft sutured to the side of the femoral artery.

After achieving proper haemostasis and checking the

pulsation.

Intra-operatively, the abdomen closed using drainage tubes.

The patient was later shifted to recovery room on ventilator with

stable vital signs.”

7. It is the case of the complainant that on 24.4.1998 at about 4 am,

that is the night after surgery, the nurse who was attending the

5
 patient observed that the pulsation of the patient had become

feeble and body temperature was low and the lower limbs had gone

cold. The relatives were informed at about 7 a.m. that the patient

was unconscious, legs were cold with no pulsation. The complainant

further alleged that the nurse had informed the Doctor at 4 am but

he came only at 9.30 a.m. The patient upon assessment by the

Doctor was directed to get second DSA test but DSA machine was out

of order. Hence, the Doctor advised angiography but the patientwas

made to wait for both DSA test as well as for angiography. One Dr.

B.K. Goyal examined the patient and reported that the patient had

probably developed block of abdominal aorta.

8. The angiography conducted at 12.30 pm on 24.4.1998 showed a block

(clot) at the graft due to which the blood supply to the lower limbs had

totally stopped. The complainant contended that the earlier surgery

was not performed correctly and there was negligence in conducting

the same. A decision was taken to re- explore the earlier surgery done

at about 3:30 pm but since all the four operation theatres were

occupied, he could only be taken to the operation theatre for re-

grafting at 5.30 p.m. As there was no pulsation in the graft and there

was clot in the graft extending into both limbs of the graft, a fresh

graft was sutured and the patientwas shifted to recovery room and

put on ventilator.

6
9. It was contended by the Hospital that the patient was in the care of

qualified doctors such as Dr. Nemish Shah, Dr. J. A. Pachore, Dr. A.L.

Kripalani, Dr. Partha, Dr. H.S. Bindra and many others throughout his

course of admission and no stone was left unturned to ascertain the

complications and treat the same. Various specialist doctors were treating

the patient and medicines/treatment was timely regulated and

changed as and when required on a daily basis. Regular daily dialysis,

dressing of wounds etc. were also done. However, unfortunately, despite

the best efforts of the qualified doctors, thepatient did not respond to the

treatment and passed away on 12.06.1998.

10. The complainant in the complaint enumerated the facts suggesting

negligence and deficiency of service on the part of the appellants.

The averments made by the complainant and the corresponding

reply by the Doctor is extracted hereinunder:

“34. In all cases of grafting “16. Without prejudice to the above

the patient is kept under close and with reference to para 34 of the
observation to find out whether complaint under reply, I deny the
blood is flowing normally. In case allegations made therein are false.
there is stoppage or lack of flow With further reference to the said
immediate action is taken to para it is substantially correct to
control the situation because lack state that in all cases of grafting
of blood is certain to rupture and patient is kept under closer
deaden the muscles. The tissues observations to find out whether
cannot survive without blood flow. blood is flowing normally. In case
But in this case after the patient there is stoppage or lack of flow
was taken to recovery room he was immediate action is taken to control

7
not examined by any doctor. The the situation because lack of blood is certain
attending nurse observed at 4.30 to rupture and deaden themuscles. I say and
a.m. on 24.4.98 that lower limbs had submit that even while treating the said
become cold and did inform the deceased,utmost care was taken by the opp.
doctors. The doctors were called in party in post operative period. In this
writing at 8 a.m. but Dr. Somaya connection I say and submit that patient was
came at 9.30 a.m. This time gap was kept in Cardio Vascular Incentive Care Unit
enough to rupture the muscles. The CVICU which is considered to be finest in
process is irreversible. It cannot be India. The patient was continuously monitored
corrected. Timely medical care could by efficient and trained nursing staff and was
have saved the life of the also monitored for 24 hours by resident
complainant. doctor. With further reference to thesaid para
I deny that at about 4.30
a.m. on 24-4-1998 the attendingnurse observed
that lower limbs had become cold as alleged or
at all. I deny that, doctors were summoned and
that I came to the said unit, only at 9.30 a.m.
as alleged or at all.I deny that, because of the
so called delay on my part further
complications took place in the case of the said
deceased as alleged orat all. I say and submit
that immediately after I received message from
the resident doctor attached to the opp. party
no.1 attended the said patient at about
9.00 a.m. and not at 9.30 a.m. as sought to be
suggested by the complainant.

35. That in spite of the critical 17. With reference to paras 35 and
condition of the complainant on 36 of the complaint under reply, I deny that in
24.4.98, he was made to stand in spite of critical condition of the complainant
queue for DSA test for more than 3 on 24.4.1998 he was deliberately made to
hours. This delay further worsened stand in queue for DSA test for more than 3
the condition of the complaint it hours. I deny that the said delay was
appears that Bombay Hospital hadno deliberate and dueto the said delay the
medical ethics. condition of

8
 36. The situation turned darker the said patient, further worsened
because after waiting for 3 hours the as alleged or at all. I say and submit
complainant was informed that the that to the best to my knowledge
machine was dis-functional. immediately I suggested DSA teston
24.4.1998, the staff of the opp.
party no.1 took the said deceased
for DSA test but unfortunately during
the relevant time the equipment
was not functioning properly and as
soon as the defects were located the
said test was conducted to enable
the opp parties to give further
treatment to the saiddeceased. I say
and submit that on perusal of the
case papers on record, it is crystal
clear that the best possible
treatment and due care was given to
the said deceased under
circumstances. I say andsubmit that
during the relevant time the
condition of the said deceased was
critical and therefore it was not
possible to shift the said patient to
any other hospital in nearby vicinity
for any test including DSA. It is also
significant, to note here that during
the relevant time DSA test
machinery was available only in
Jaslok Hospital, Hinduja Hospital and
Breach Candy Hospital. However, it
was not possible to shift the said
patient for the said test considering
the patient condition. In any event I
dispute the allegations made by the
complainant as the complainant’s
failed to substantiate the said
allegations by producing any
independent material on that behalf.
Besides this the said allegations are
not based or supported on the basis
of the independent expert’s opinion.

37. That on the same day at 12.30 18. With reference to para 37 of the
p.m. (8 hours after it was discovered complaint under reply, it is

9
that blood supply has stopped) substantially correct to state that on
angiography was performed. But the same day at about 12.30 p.m.
again the report was given at 3.30 angiography was performed.
p.m. a further delay of 3 hours which However, I deny that report was made
were crucial to the life of the available only at 3.30 p.m. as alleged
complainant. or at all. I deny that further delay of 3
hours which were crucial to the life
of the deceased,contributed towards
furthercomplications as alleged or at
all.

38. That on receipt of the report the 19. With reference to paras 38 and
surgeon decided to reopen the 39 of the complaint under reply, it is
abdomen to make correctness. Again substantially correct to state that
the operation could not be done the surgeon decided to reopen
immediately because thehospital did abdomen to make correctness after
not have a vacantoperation theatre. perusing the angiography report.
The hospital did not have emergency However, I deny that operation was
operation theatre. The hospital did postponed or delayed as theatre
not even try to operate the patient was not available. I say and submit
in an outside operation theatre. This that the said delay was not at all
caused another delay of 3 hours. deliberate. During the relevant time,
the operation theatres of opp. party
no.1 were occupied as other
39. The sequence of event shows that patients were under treatment.
for various causes wholly attributable 20. With further reference to the
to the Bombay Hospital that treatment said para the allegations made
was delayed by 12 hours while the therein are not only baseless butthe
muscles cannot survive lack of blood same are made with ulteriormotive
supply for more than two hours. and malafide intention. I say and
submit that to my personal
knowledge and the opp. party no.1
is one of the most well equipped
hospital in Asia. I say and submit that
there are 4 operation theatres
available for CU surgery only which
is a rear phenomenon in city of
Mumbai and therefore the
allegations made by the
complainants that the hospital did
not have emergency operation is
totally baseless.

40. There was a finding of 21. With reference to paras 40 and

10
impending gangrene in the DSAreport 41 of the complaint under reply, I
dated 22.4.98 by Dr. Somaya himself deny the allegation made therein as
but no heed was paid to it. false. I say and submit that on
perusal of the case papers
41. That Dr. Somaya being the Senior maintained by the opp. party no.1 it
most surgeon of the team was duty is abundantly clear that I was
bound to keep the patient in constantly monitoring the said
constant observation, but after the deceased therefore allegations that
patient was shifted to recovery I examined the said patient nearly
room, he came to examine the after 16 hours from the surgery is
patient after nearly 16 hours. Had he totally false, frivolous and vexatious
seen the patient one or two hours and the said allegations appears to
after he was shifted, he could have have been made with ulterior motive
observed that no blood was flowing and malafide intention tosome how
through the graft. The surgeons make out case of medicalnegligence
negligence caused the patient his against me with an intention to
life. knock out hand sum ransom from me
and opp. party no.1. I say and submit
that I treated the said patient with
best of myability and with due and
diligent care and therefore, I am
pained to hear such allegations from
thefamily members of the deceased,
that too, after 18 months from the
said treatment. It is significant to
note here that if the complainants
were really convinced about the so
called negligence on the part of the
opp. parties, surely the
complainants or other relatives of
the said deceased would have lodged
complaint with local police station
or insisted for post-mortem of the
said deceased and/or would have
approached the Court against the
hospital as well as against me. The
very fact that present complainthas
been filed on 10.7.1999 without
sending any proper notice thereby
railing upon the opp. parties to
explain the so called negligence also
supports my case that present
complaint is filed with ulterior

11
 motive with an intention to knock out
hand sum ransom from the opp.
parties.

42. That leaving the patient fighting 22. With reference to para 42 of the
for his life in the care of complaint under reply, I deny that
inexperienced junior doctors viz. Dr. during the relevant time I went abroad
Partha and Bindra, Dr. Somaya went for vacation thereby leaving the
abroad for vacationing. He was not patient fighting for his life in the care
available even for advice for more of inexperienced junior doctors viz.
than 30 days. Dr. Partha and Dr. Bindra as alleged or
at all. I say and submit that
aforementioned allegations are not
only false but the said allegations are
made with an intention to cause
prejudice in the mind of the Hon’ble
Members of National Commission. In
this connection, I say and submit that
during the relevant time i.e.
between 9th May 1998 to 7.6.1998,
I had to China, England and USA to
attend medical conferences and both
the said conferences were fixed well
in advance. Similarly the allegations
of the complainants that Dr. Partha
and Dr. Bindra are inexperienced
junior doctors is also baseless for the
simple reasons that both the
aforementioned doctors are
postgraduate and experienced in
their respective field and both are
having adequate experience in the
aforementioned field. Besides this
the said deceased was being treated
by senior specialist at the opp. party
no.1 hospital and in case of any
emergency opp. party no.1 could have
arranged senior expertsand therefore
merely because I was away from India
that too in connection with my
professional activities, the
complainants should
not be permitted to make capital

12
 out of it.
43. That Dr. Kripalani a neurologist 23. With reference to para 43 of the
when called to examine the patient complaint under reply, I say and
remarked that “both the legs are gone submit that Dr. Kripalani is a
and it is a gone case. Your doctor Nephrologists. I deny that Dr.
should tell each and everything”. But Kripalani remarked that both thelegs
Dr. Somaya continued to conceal the are gone and it is a gone case. Ideny
health prognosis from the complainant that Dr. Kripalani further observed
and his relatives and continued to that doctors deliberately suppressed
delayin taking vital decisions. Had he the said fact from youas alleged or
taken a decision to amputate the legs at all. I say and submit that though
at the right time he could have saved the said allegations are made by the
the life of the complainant. complainant in the name of Dr.
Kripalani, the complainants have
miserably failed to substantiate the
said allegation by filing affidavit of
Dr. Kripalani. I say and submit that
after perusing the aforementioned
allegations I have consulted Dr.
Kripalani and Dr. Kripalani has
confirmed that he had no such
occasion to make any such
observations to the relatives of the
said complainant. I am filing the
affidavit of Dr. Kripalani to
substantiate my contention.
44. It is clear to even a novice 24. With reference to paras 44 and
medical student that dead muscles 45 of the complaint under reply, I
invite septicemia and gangrene. So deny the allegations made therein
what was required was a timely as false save and except the factual
action to prevent further damage. position that the said deceased died
But Dr. Somaya refrained from on 12.6.1998 at 9.30 p.m. I say and
adopting the requisite procedure. submit that though it is unfortunate
The patient’s legs were amputated that the said deceased died
only when all the consultants opined prematurely at the age of 43, even
that it was the only procedure for then the complainants have no right
saving life. Yet his negligence in of whatsoever nature to make
taking timely action killed the only allegations against the opp. parties.
chance which the patient had. I say and submit that my sympathies
are with thecomplainant and other
45. That it is apparent from the family members and relatives of the
series of events that there has been said deceased. I say and submit that
lack of diligence and an established the said deceased died due to
case of negligence on the part of medical,

13
 opposite party in providing services mishap and not due to any
to the complainants as a result of negligence either on my part or on
which the complainant died on the part of the staff of the opp.
12.6.1998 at 9.30 p.m.” party no.1.”

11. The affidavit of the complainant is on the same lines as the averments

made in the complaint before the Commission.

12. The grievance of the complainant against the appellants can be

summarized under the following heads:

(a) The Doctor had not examined the patient after surgery;
(b) The patient was made to stand in queue for DSA test despite

his critical condition whereafter the machine was found to be

dysfunctional;

(c) Angiography was performed after 8 hours of discovering that

blood supply has stopped;

(d) The Hospital delayed treatment by 12 hours as no operation

theatre was available;

(e) The Doctor did not attend the patient and left him in the care

of inexperienced doctors;
(f) Doctor failed to amputate legs on time on account of

gangrene and did not try to treat the gangrene; and

(g) The reliance on the principle of res ipsa loquitor to support the

finding that it is a case of medical negligence.

13. Learned Commission while analyzing the evidence observed that the

complainant had filed evidence affidavits but the Hospital andthe

Doctor, though have filed their written versions, but have not

14
 filed evidence by way of affidavits except an affidavit of Dr.

Kripalani. We however find at the outset that such primary

observation is itself erroneous. The Hospital and the Doctor had filed

their written version by way of affidavit dated 7.1.2000 i.e., the same

date on which Dr. Kripalani had filed an affidavit. The Commission

has overlooked the fact that written version is by way of an affidavit.

Later, the Hospital had also filed evidence affidavit on 13.07.2009

whereas the Doctor had filed a short affidavit on 30.8.2009

reiterating and confirming the statements, averments and the

contentions raised in the written version filed on 7.1.2000. Thus,

there is factual error in the order of the Commission.

14. The Commission had commented adversely against the Doctor that

he had not seen or attended the patient for several days before his

departure for his tour to U.S.A and U.K for about a month and had

not even indicated the name of any super specialist in his field who

should look after the patient in his absence. The Commission

mentioned that the Doctor observed at the first instance within a

couple of days of admission at the Hospital that there was impending

gangrene and that Dr. Partha and Dr. Bindra did not take timely

decision for amputation of legs and by the time Dr. Pachore was

consulted, it was too late. Moreover, it was also noted that Dr.

Pachore had scolded Dr. Partha for the delay in consulting him as

even if the amputation was done at such belated occasion, nothing

15
 could be said about the survival of the patient.

15. The Commission opined that considering the conditions in India, it is

very difficult to secure the presence of an expert doctor to file an

affidavit against another expert doctor and thus it would be a case

of res ipsa loquitor. It was mentioned that though the Doctor was

present at Mumbai from 29.4.1998 to 9.5.1998, he did not give advice

for amputation of the legs and thereafter from 9.5.1998 to 7.6.1998,

he went to U.S.A and U.K to attend medical conferences. He had

visited the patient only on 8.6.1998 after several days of amputation.

The Commission relied upon judgment in Whitehouse

v. Jordan and Anr.6 to apply the principle of res ipsa loquitor. A

reference was also made to an article “Repair of Infraneral

Abdominal Aortic Aneurysms (AAAs): Introduction” to say that the

mortality associated with repair of AAAs has been greatly reduced

by improvements in preoperative evaluation and perioperative care.

Another text book by Robert B. Rutherford was referred to note that

paraplegia was a rare complication in the case of Aneurysms whereas

in the present matter, paraplegia occurred instantaneously.

16. Learned counsel for the appellants herein argued that the Hospital

is a renowned hospital having four operation theatres and advance

machines including DSA. Three other hospitals in Mumbai such as

Jaslok Hospital, Hinduja Hospital and Breach Candy Hospital alone

6 [1981] 1 Weekly Law Reports 246

16
 had DSA machines at the relevant time. The Hospital in its affidavit

had inter alia mentioned that the DSA test is not a bed side test. The

patient has to be carefully shifted to the cardiac cauterization

department where the DSA machine was installed. The patient

hence had to be stabilized before he was shifted to DSA department.

Since the patient was put on ventilator and on several support

medications, it was not possible to immediately undergo the DSA

test. But when the patient was taken for DSA test, the machine

developed certain technical problem. Since the DSA machine was

not working, angiography was thought to be the best possible test

and was thus conducted. The Hospital had specialized staff in all

branches of medicine and the medical assistance as was required

from time to time including nephrology, orthopedics etc. was

provided to the patient. It was argued that the professional

competence of Doctor has not been doubted even by the Commission

but two factors have been taken against the Doctor for holding him

negligent; first, that he did not visit the patient soon after the

surgery till 9/9.30 a.m. on the next day to verify the bloodflow after

the surgery, and second, he did not visit the patient from29.4.1998

to 9.5.1998 when he was in Mumbai and from 9.5.1998to 7.6.1998

when he went abroad for attending medical conferences.

17. We do not find that the basis of finding the Doctor negligent in

17
 providing medical care is sustainable as there are both legal and

factual errors in the findings recorded by the Commission.

18. Dr. K.G. Deshpande had referred the patient to the Doctor on

15.4.1998 with advice of urgent surgical repair of Aneurysum. The

patient had taken another six days to consult Doctor at Mumbai and

it was only on 21.4.1998 that the patient was examined by the

Doctor and was advised immediate Aneurysmectomy in view of the

impending gangrene. Therefore, gangrene was not found to be

impending after few days of admission to the Hospital but even

before the patient was admitted. The patient was in critical

condition when the Doctor was consulted on 21.4.1998 and surgery

was thereafter performed within two days.

19. Further, the non-working of the DSA machine and consequent delay

in performing the test cannot be said to be negligence on the part

of the Doctor or the Hospital. The DSA machine is a large, expensive

and complicated machine which unfortunately developed certain

technical problem at the time when patient had to be tested. Any

machine can become non-functional because of innumerable factors

beyond the human control as the machines involve various

mechanical, electrical and electronic components. The DSA test was

conducted in the Hospital on 22.4.1998 and hence DSA machine

cannot be said to be dysfunctional for a long time. The alternative

18
 process to determine the blood flow was carried out by angiography

and the decision for re-exploration was taken at 12.30 p.m. No fault

can be attached to the Hospital if the operation theatres were occupied

when the patient was taken for surgery. Operation theatres cannot

be presumed to be available at all times. Therefore, non-availability of

an emergency operation theatre during the period when surgeries

were being performed on other patients isnot a valid ground to hold

the Hospital negligent in any manner.

20. The re-exploration of operative notes dated 24.4.1998 shows that a

fresh graft was sutured in place after establishing the flow. Thepatient

was then put on ventilator and shifted to recovery room. On 25.4.1998,

a note by Dr. Bindra indicated that the patient was seenby Dr. Shruti.

It was noted that there was no movement in both the legs but had pin

prick sensation and below mid-thigh, sensation was present on the

lower limbs. Further, legs were warm till the ankles and the feet were

cold. On 27.4.1998, Dr. H.S. Bindra had sought consultation from Dr.

Khadilkar giving case history that limbs were warm and that the

patient had pain in the lumber region and wasalso feeling tightness

in both the lower limbs. Dr. Khadilkar noted his impressions that it

was very likely lower spinal cord/conus syndrome and thereafter

advised MRI of the lower cervical spineand till then to continue with

the medicine pentosiflin and lomodex and for muscle ischemia – high

CK and Myoglobulin. Dr. Khadilkar

19
 suggested the same treatment to continue on 28.4.98. On 29.4.1998,

Dr. Khadilkar had reported the sensory level dropped to upper 1/3rd

of the thigh and that there was no power in limbs. No changes were

however seen in the MRI report. It was also reported that probably

myonecrosis was playing more significant role in the weakness. The

patient was put on dialysis thereafter.

21. The patient was examined by Dr. Kripalani or his unit from 1.5.1998

and thereafter for many days till 23.5.1998. The dialysis was being

conducted in the meantime as well. The patient was being

monitored by Dr. Bindra throughout. Subsequently, the patient was

referred to Dr. Amarapurkar on 12.5.1998 when it was noted that

Ischemic Injury to liver needed no treatment on 13.5.1998. The

patient was then referred to Dr. Amin for enternal nuirisim on

16.5.1998.

22. It was further noted on 18.05.1998 from Colour Flow Imaging of limb

arteries that both common femoral, superficial femoral and popliteal

arteries were patent. The flow in both posterior tibial arteries was of

low velocity and of venous type, suggesting refilled flow. Dr. Pachore

also examined the patient on 27.5.1998 and observed thatthe patient

had wet gangrene below knee and was thus advised amputation. On

29.5.1998, the patient was operated for amputation below the knee at

the level of tibial tuberosity for treatment of wet

20
 gangrene and the Bilateral Guillatine Amputation was carried out.

On 30.05.1998, it was noted that the acute renal failure was

improving. Further septicemia was diagnosed on 30.05.1998. Later,

on 12.06.1998, the patient was put on ventilator and he

subsequently passed away at 9.30 pm due to septicemic shock.

23. It is to be noted that it is not the case of the complainant that

Doctor was not possessed of requisite skill in carrying out the operation.

In fact, the patient was referred to him by Dr. Deshpande keeping in

view the expertise of the Doctor in vascular surgery.There is no proof

that there was any negligence in performing the surgery on 23.4.1998

or in the process of re-exploration on 24.4.1998. The allegation is of

failure of the Doctor to take the follow-up action after surgery on

23.4.1998, a delayed decision to amputate the leg subsequent to re-

exploration on 24.4.1998, andthe alleged undue foreign visit of the

Doctor.

24. In respect to such contention of the Doctor being on a foreign visit,

it is well known a medical professional has to upgrade himself with

the latest development in his field which may require him to attend

conferences held both in and outside the country. Mere fact that the

Doctor had gone abroad cannot lead to an inference of medical

negligence as the patient was admitted in a hospital having

21
 specialists in multi-faculties. Two doctors from the unit of the Doctor

namely Dr. Bindra and Dr. Partha, both post graduates, were present

to attend to the patient. Moreover, as per the stand of the Hospital and

the Doctor, the patient was kept in Cardio Vascular IntensiveCare

Unit after the surgery and was continuously being monitored by

qualified post-graduate doctors including Dr. Nemish Shah, Headof

Cardio Vascular Surgery. The patient was even attended by other

specialist doctors as well which is evident from the brief summary of

treatment given to the patient. The experts in the other fields have

been consulted from time to time and the treatment was modulated

accordingly. In spite of the treatment, if the patient had not survived,

the doctors cannot be blamed as even the doctors withthe best of

their abilities cannot prevent the inevitable.

25. The blood was flowing properly soon after the surgery but later the

formation of clot was confirmed after the angiography test was

conducted at 12.30 p.m. An immediate decision was taken for re-

exploration at 3.30 p.m. The allegation of delay in treatment after

the surgery seems to be baseless as the patient was being

administered antibiotics like Metrogyl 400 and Piperacillin Injection

which are used for treatment in gangrene. Dr. Kripalani in his

affidavit denied the allegation leveled by the complainant. Dr.

Kripalani had treated patient continuously including carrying out the

dialysis. In respect of the allegation that doctors failed to amputate

22
 legs on time, efforts were being made to save the limbs as amputation

is considered as the last resort. The amputation was done as per the

advice of Dr. Pachore. In the present era of super- specialization, one

doctor is not a solution for all problems of a patient. Each problem is

dealt with by an expert in the concerned field and that is what is

apparent from the medical record. The stand of the complainant is

that since surgery was performed by a doctor, he alone would be

responsible for different aspects of the treatment required and given

to the patient. However, it is an incorrect assumption to be made.

26. It is a case where the patient was in serious condition impending

gangrene even before admission to the Hospital but even after surgery

and re-exploration, if the patient does not survive, the fault cannot be

fastened on the doctors as a case of medical negligence.It is too

much to expect from a doctor to remain on the bed side ofthe patient

throughout his stay in the hospital which was being expected by the

complainant here. A doctor is expected to provide reasonable care

which is not proved to be lacking in any manner in the present case.

27. The sole basis of finding of negligence against the Hospital is of res

ipsa loquitor. It is to be noted that res ipsa loquitor is a rule of

evidence. This Court in a judgment reported as Syad Akbar v.

23
 State of Karnataka7 explained the principle in a criminal trial as

under:

“19. As a rule, mere proof that an event has happened or an

accident has occurred, the cause of which is unknown, is not
evidence of negligence. But the peculiar circumstances con-
stituting the event or accident, in a particular case, may
themselves proclaim in concordant, clear and unambiguous
voices the negligence of somebody as the cause of the event
or accident. It is to such cases that the maxim res ipsa lo-
quitur may apply, if the cause of the accident is unknown and
no reasonable explanation as to the cause is coming forth from
the defendant. To emphasise the point, it may be reiter- ated
that in such cases, the event or accident must be of a kind
which does not happen in the ordinary course of things ifthose
who have the management and control use due care. But,
according to some decisions, satisfaction of this condi- tion
alone is not sufficient for res ipsa to come into play and ithas
to be further satisfied that the event which caused the
accident was within the defendant's control. The reason for
this second requirement is that where the defendant has con-
trol of the thing which caused the injury, he is in a better po-
sition than the plaintiff to explain how the accident occurred.
Instances of such special kind of accidents which “tell their
own story” of being offsprings of negligence, are furnished by
cases, such as where a motor vehicle mounts or projects over
a pavement and hurts somebody there or travelling in the ve-
hicle; one car ramming another from behind, or even a head-
on collision on the wrong side of the road. (See per Lord Nor-
mand in Barkway v. South Wales Transport Co. [(1950) 1 All ER
392, 399] ; Cream v. Smith [(1961) 8 AER 349] ;Rich-
ley v. Faull [(1965) 1 WLR 1454 : (1965) 3 All ER 109])

20. Thus, for the application of the maxim res ipsa loquitur
“no less important a requirement is that the res must not only
bespeak negligence, but pin it on the defendant”.

xxx xxx xxx

26. From the above conspectus, two lines of approach in re- gard
to the application and effect of the maxim res ipsa lo- quitur are
discernible. According to the first, where the maxim applies,
it operates as an exception to the general
7 (1980) 1 SCC 30

24
rule that the burden of proof of the alleged negligence is, in
the first instance, on the plaintiff. In this view, if the nature of
an accident is such that the mere happening of it is evidence
of negligence, such as, where a motor vehicle without appar-
ent cause leaves the highway, or overturns or in fair visibility
runs into an obstacle; or brushes the branches of an over-
hanging tree, resulting in injury, or where there is a duty on
the defendant to exercise care, and the circumstances in
which the injury complained of happened are such that with
the exercise of the requisite care no risk would in the ordinary
course ensue, the burden shifts or is in the first instance on
the defendant to disprove his liability. Such shifting or casting
of the burden on the defendant is on account of a presump-
tion of law and fact arising against the defendant from the
constituent circumstances of the accident itself, which be-
speak negligence of the defendant. This is the view taken in
several decisions of English courts. [For instance,see
Burke v. Manchester, Sheffield & Lincolnshire Rail Co.
[(1870) 22 LJ 442] ; Moore v.R. Fox & Sons [(1956) 1 QB
596 : (1956) 1 All ER 182] . Also see paras 70, 79 and 80
of Halsbury's Laws of England, Third Edn., Vol. 28, and the
rulings mentioned in the footnotes thereunder.]

27. According to the other line of approach, res ipsa loquitur

is not a special rule of substantive law; that functionally, it is
only an aid in the evaluation of evidence, “an application of
the general method of inferring one or more facts in issue
from circumstances proved in evidence”. In this view, the maxim
res ipsa loquitur does not require the raising of any presumption
of law which must shift the onus on the defen- dant. It only,
when applied appropriately, allows the drawingof a permissive
inference of fact, as distinguished froma mandatory
presumption properly so-called, having regard to the totality
of the circumstances and probabilities of the case. Res ipsa is
only a means of estimating logical probabil- ity from the
circumstances of the accident. Looked at fromthis angle, the
phrase (as Lord Justice Kennedy put it [Rus- sel v. London &
South Western Railway Co, (1908) 24 TLR 548] ) only means,
“that there is, in the circumstances of the particular case, some
evidence which, viewed not as a matter of conjecture, but of
reasonable argument, makes it more probable that there was
some negligence, upon the facts as shown and undisputed, than
that the occurrence took place without negligence .... It means
that the circumstances are,

25
 so to speak, eloquent of the negligence of somebody who
brought about the state of things which is complained of.”

28. Recently, a three Judge Bench in a judgment reported as Iffco Tokio

General Insurance Company Limited v. Pearl Beverages Lim-

ited8 approved the aforesaid judgment in a case of medical negli-

gence being examined by the consumer fora. It was held as under:

“86. Thus, it is used in cases of tort and where the facts with-
out anything more clearly and unerringly point to negligence. The
principle of res ipsa loquitur, as such, appears to be inap- posite,
when, what is in question, is whether driver was under the
influence of alcohol. It may be another matter that though the
principle as such is inapplicable, the manner in which the
accident occurred may along with other circum-stances point to
the driver being under the influence of alco- hol.”

29. In Martin F. D'Souza v. Mohd. Ishfaq9, this court observed that

the doctor cannot be held liable for medical negligence by applying

the doctrine of res ipsa loquitur for the reason that a patient has not

favourably responded to a treatment given by a doctor or a surgery

has failed. There is a tendency to blame the doctor when a patient

dies or suffers some mishap. This is an intolerant conduct of the

family members to not accept the death in such cases. The in-

creased cases of manhandling of medical professionals who worked

day and night without their comfort has been very well seen in this

pandemic. This Court held as under:-

8 (2021) 7 SCC 704

9(2009) 3 SCC 1

26
 “40. Simply because a patient has not favourably
responded to a treatment given by a doctor or a surgery
has failed, the doctor cannot be held straightaway liable
for medical negligence by applying the doctrine of res ipsa
loquitur. No sensible professional would intentionally
commit an act or omission which would result in harm or
injury to the patient since the professional reputation of
the professional would be at stake. A single failure may
cost him dear in his lapse.

xxx xxx xxx

42. When a patient dies or suffers some mishap, there is a

tendency to blame the doctor for this. Things have gone
wrong and, therefore, somebody must be punished for it.
However, it is well known that even the best professionals,
what to say of the average professional, sometimes have
failures. A lawyer cannot win every case in his professional
career but surely he cannot be penalised for losing a case
provided he appeared in it and made his submissions.”

30. In case of medical negligence, this Court in a celebrated judgment

reported as Jacob Mathew v. State of Punjab and Anr.10 held that

simple lack of care, an error of judgment or an accident, is nota proof

of negligence on the part of a medical professional. The Court held

as under:

“48. We sum up our conclusions as under:

(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 hu-
man affairs would do, or doing something which a prudent
and reasonable man would not do. The definition of negli-
gence 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 result-

10 (2005) 6 SCC 1

27
ing from the act or omission amounting to negligence at-
tributable to the person sued. The essential components of
negligence are three: “duty”, “breach” and “resulting dam-
age”.

(2) Negligence in the context of the medical profession nec-

essarily calls for a treatment with a difference. To infer rash-
ness or negligence on the part of a professional, in particu-
lar a doctor, additional considerations apply. A case of occu-
pational 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 med-
ical professional. So long as a doctor follows a practice ac-
ceptable to the medical profession of that day, he cannot be
held liable for negligence merely because a better alter-
native course or method of treatment was also available or
simply because a more skilled doctor would not have cho-
sen to follow or resort to that practice or procedure which
the accused followed. When it comes to the failure of taking
precautions, what has to be seen is whether those precau-
tions were taken which the ordinary experience of men has
found to be sufficient; a failure to use special or extraordi-
nary precautions which might have 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 in the light of knowledge
available at the time of the incident, and not at the date of
trial. Similarly, when the charge of negligence arises out of
failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that par-
ticular time (that is, the time of the incident) at which it is
suggested it should have been used.

xxx xxx xxx

(4) The test for determining medical negligence as laid down

in Bolam case [(1957) 1 WLR 582 : (1957) 2 All ER 118 (QBD)]
, WLR at p. 586 [ [Ed.: Also at All ER p. 121 D-F and set out
in para 19, p. 19 herein.]] holds good in its ap- plicability in
India.

xxx xxx xxx

28
 (8) Res ipsa loquitur is only a rule of evidence and operates
in the domain of civil law, specially in cases of torts and
helps in determining the onus of proof in actions relating to
negligence. It cannot be pressed in service for determin- ing
per se the liability for negligence within the domain of criminal
law. Res ipsa loquitur has, if at all, a limited applica-tion in
trial on a charge of criminal negligence.”

31. In another judgment reported as Arun Kumar Manglik v. Chirayu

Health and Medicare Private Limited and Anr .11, this Court held

that the standard of care as enunciated in Bolam case must evolve

in consonance with its subsequent interpretation by English and

Indian Courts. The threshold to prove unreasonableness is set with

due regard to the risks associated with medical treatment and the

conditions under which medical professionals’ function. The Court

held as under:

“45. In the practice of medicine, there could be varying

approaches to treatment. There can be a genuine difference
of opinion. However, while adopting a course of treatment,
the medical professional must ensure that it is not
unreasonable. The threshold to prove unreasonableness is set
with due regard to the risks associated with medical
treatment and the conditions under which medical
professionals function. This is to avoid a situation where
doctors resort to “defensive medicine” to avoid claims of
negligence, often to the detriment of the patient. Hence, in a
specific case where unreasonableness in professional conduct
has been proven with regard to the circumstances of that
case, a professional cannot escape liability for medical
evidence merely by relying on a body of professional
opinion.”

13 (2010) 3 SCC 480

29
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam12, thisCourt

held that the Commission ought not to presume that the alle- gations

in the complaint are inviolable truth even though they re- mained

unsupported by any evidence. This Court held as under:

“37. We find from a reading of the order of the Commission that

it proceeded on the basis that whatever had been al- leged in
the complaint by the respondent was in fact the in- violable
truth even though it remained unsupported by any evidence. As
already observed in Jacob Mathew case [(2005)6 SCC 1 : 2005
SCC (Cri) 1369] the onus to prove medical negligence lies largely
on the claimant and that this onus can be discharged by
leading cogent evidence. A mere aver- ment in a complaint
which is denied by the other side can, by no stretch of
imagination, be said to be evidence by which the case of the
complainant can be said to be proved.It is the obligation of the
complainant to provide the facta probanda as well as the facta
probantia.”

33. In another judgment reported as Kusum Sharma and Others v.

Batra Hospital and Medical Research Centre and Others 13, a

complaint was filed attributing medical negligence to a doctor who

performed the surgery but while performing surgery, the tumour was

found to be malignant. The patient died later on after prolonged

treatment in different hospitals. This Court held as under:

“47. Medical science has conferred great benefits on mankind,

but these benefits are attended by considerable risks. Every
surgical operation is attended by risks. We cannot take the
benefits without taking risks. Every advancement in technique
is also attended by risks.

xxx xxx xxx

12 (2009) 7 SCC 130

13 (2010) 3 SCC 480

30
 72. The ratio of Bolam case [(1957) 1 WLR 582 : (1957) 2 All
ER 118] is that it is enough for the defendant to show that the
standard of care and the skill attained was that of the ordinary
competent medical practitioner exercising anordinary degree
of professional skill. The fact that the respondent charged
with negligence acted in accordance with the general and
approved practice is enough to clear him of the charge. Two
things are pertinent to be noted. Firstly, thestandard of care,
when assessing the practice as adopted, is judged in the light
of knowledge available at the time (of theincident), and not
at the date of trial. Secondly, when the charge of negligence
arises out of failure to use some particular equipment, the
charge would fail if the equipmentwas not generally available
at that point of time on which it issuggested as should have
been used.

xxx xxx xxx

78. It is a matter of common knowledge that after happening

of some unfortunate event, there is a marked tendency to
look for a human factor to blame for an untoward event, a
tendency which is closely linked with the desire to punish.
Things have gone wrong and, therefore, somebody must be
found to answer for it. A professional deserves total protec-
tion. The Penal Code, 1860 has taken care to ensure that
people who act in good faith should not be punished. Sec-
tions 88, 92 and 370 of the Penal Code give adequate protec-
tion to the professionals and particularly medical profession-
als.”

34. Recently, this Court in a judgment reported as Dr. Harish Kumar

Khurana v. Joginder Singh & Others14 held that hospital and the

doctors are required to exercise sufficient care in treating the pa-

tient in all circumstances. However, in an unfortunate case, death

may occur. It is necessary that sufficient material or medical evi-

dence should be available before the adjudicating authority to arrive

14 (2021) SCC Online SC 673

31
 at the conclusion that death is due to medical negligence. Everydeath

of a patient cannot on the face of it be considered to be medi- cal

negligence. The Court held as under:

“11. …….. Ordinarily an accident means an unintended and

unforeseen injurious occurrence, something that does not
occur in the usual course of events or that could not be rea-
sonably anticipated. The learned counsel has also referred to
the decision in Martin F.D'Souza v. Mohd. Ishfaq, (2009) 3
SCC 1 wherein it is stated that simply because the patient
has not favourably responded to a treatment given by doc-
tor or a surgery has failed, the doctor cannot be heldstraight
away liable for medical negligence by applying the doctrine
of Res Ipsa Loquitor. It is further observed therein that
sometimes despite best efforts the treatment of a doc-tor
fails and the same does not mean that the doctor or the
surgeon must be held guilty of medical negligence unless
there is some strong evidence to suggest that the doctor is
negligent.

xxx xxx xxx

14. Having noted the decisions relied upon by the learned
counsel for the parties, it is clear that in every case where
the treatment is not successful or the patient dies during
surgery, it cannot be automatically assumed that the medi- cal
professional was negligent. To indicate negligence there should
be material available on record or else appropriate medical
evidence should be tendered. The negligence al- leged should
be so glaring, in which event the principle of res ipsa
loquitur could be made applicable and not based on
perception. In the instant case, apart from the allegations made
by the claimants before the NCDRC both in the com- plaint and
in the affidavit filed in the proceedings, there is no other
medical evidence tendered by the complainant to indicate
negligence on the part of the doctors who, on their own behalf
had explained their position relating to the medi- cal process in
their affidavit to explain there was no negli- gence ”

35. It may be mentioned here that the complainant had led no evidence

32
 of experts to prove the alleged medical negligence except their own

affidavits. The experts could have proved if any of the doctors in the

Hospital providing treatment to the patient were deficient or negligent

in service. A perusal of the medical record produced does not show any

omission in the manner of treatment. The experts of different

specialities and super-specialities of medicine were available to treat

and guide the course of treatment of the patient. The doctors are

expected to take reasonable care but none of the professionals can

assure that the patient would overcome the surgical procedures. Dr.

Kripalani has been attributed to have informed the complainant that

the patient’s legs were not workingbut Dr. Kripalani denied all the

averments by filing of an affidavit.

36. As discussed above, the sole basis of finding the appellants negligent

was res ipsa loquitor which would not be applicable herein keeping in

view the treatment record produced by the Hospital and/or the

Doctor. There was never a stage when the patient was left

unattended. The patient was in a critical condition and if he could

not survive even after surgery, the blame cannot be passed on to

the Hospital and the Doctor who provided all possible treatment

within their means and capacity. The DSA test was conducted by the

Hospital itself on 22.4.1998. However, since it became dysfunctional

on 24.4.1998 and considering the critical condition of the patient,

an alternative angiography test was advised and conducted and the

re-exploration was thus planned. It

33
 is only a matter of chance that all the four operation theatres of the

Hospital were occupied when the patient was to undergo surgery.

We do not find that the expectation of the patient to have an

emergency operation theatre is reasonable as the hospital can provide

only as many operation theatres as the patient load warrants. If the

operation theatres were occupied at the time when the operation of

the patient was contemplated, it cannot be said that there is a

negligence on the part of the Hospital. A team of specialist doctors was

available and also have attended to the patient but unfortunately

nature had the last word and the patient breathed his last. The family

may not have coped with the loss oftheir loved one, but the Hospital

and the Doctor cannot be blamedas they provided the requisite care

at all given times. No doctor can assure life to his patient but can only

attempt to treat his patient to the best of his ability which was being

done in the present case as well.

37. Therefore, we find that the findings recorded by the Commission

holding the Hospital and the Doctor guilty of medical negligence are

not sustainable in law. Consequently, the present appeals are

allowed. The order passed by the Commission is set aside and the

complaint is dismissed.

38. By virtue of an interim order passed by this Court on 8.3.2010, a

sum of Rs. 5 lakhs was disbursed to the complainant. The said

34
 amount is ordered to be treated as ex gratia payment to the

complainant and not to be recovered back by either the Hospital or the

Doctor.

.............................................J.
(HEMANT GUPTA)

.............................................J.
(V. RAMASUBRAMANIAN)
NEW DELHI;
NOVEMBER 30, 2021.

35
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10044 OF 2010

CENTRAL PUBLIC INFORMATION OFFICER,

SUPREME COURT OF INDIA ….. APPELLANT(S)

VERSUS

SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 10045 OF 2010

AND

CIVIL APPEAL NO. 2683 OF 2010

JUDGMENT
SANJIV KHANNA, J.

This judgment would decide the afore-captioned appeals

preferred by the Central Public Information Officer (‘CPIO’ forshort),

Supreme Court of India (appellant in Civil Appeal Nos. 10044 and

10045 of 2010), and Secretary General, Supreme Court of India

(appellant in Civil Appeal No. 2683 of 2010), againstthe common

respondent – Subhash Chandra Agarwal, and seeks

Civil Appeal No. 10044 of 2010 & Ors. Page 1 of 108

 though it may apply even if the information is false or partly

incorrect. However, the information must not be trivial or useless.

38. While previously information that could be considered personal would

have been protected only if it were exchanged in a confidential

relationship or considered confidential by nature, significant

developments in jurisprudence since the 1990’s have posited the

acceptance of privacy as a separate right and something worthy of

protection on its own as opposed to being protected under an

actionable claim for breach of confidentiality. A claim to protect

privacy is, in a sense, a claim for the preservation of confidentiality

of personal information. With progression of the right to privacy, the

underlying values of the law that protects personal information

came to be seen differently as the courts recognised that unlike law

of confidentiality that is based upon duty of good faith, right to

privacy focuses on the protection of human autonomy and dignity

by granting the right to control the dissemination of information

about one’s private life and the rightto the esteem and respect of

other people (See - Sedley LJin Douglas v. Hello! Ltd22). In

PJS v. News Group Newspapers Ltd.23, the Supreme Court of

the United Kingdom had drawn a

22 (2001) QB 967
23 (2016) UKSC 26

Civil Appeal No. 10044 of 2010 & Ors. Page 50 of 108

 distinction between the right to respect private and family life or

privacy and claims based upon confidentiality by observing that

the law extends greater protection to privacy rights than rights in

relation to confidential matters. In the former case, the claim for

misuse of private information can survive even when information

is in the public domain as its repetitive use itself leads to violation

of the said right. The right to privacy gets the benefit of both the

quantitative and the qualitative protection. The former refers to the

disclosure already made and what is yet undisclosed, whereas the

latter refers to the privateness of the material, invasion of which is

an illegal intrusion into the right to privacy. Claim for confidentiality

would generally fail when the information is in public domain. The

law of privacy is, therefore, not solely concerned with the

information, but more concerned with the intrusion and violation of

private rights. Citing an instance of how publishing of defamatory

material can be remedied by a trial establishing the falsity of such

material and award of damages, whereas invasion of privacy

cannot be similarly redressed, the Court had highlighted the reason

why truth or falsity of an allegation or information may be irrelevant

when it comes to invasion of privacy. Therefore, claims for

protection against invasion of private and family life do not depend

upon confidentiality alone. This distinction is important to

Civil Appeal No. 10044 of 2010 & Ors. Page 51 of 108

 PART J

The present judgment does not seek to define what the standards for judicial

appointments should be. However, what needs to be emphasised is that the

substantive standards which are borne in mind must be formulated and placed

in the public realm as a measure that would promote confidence in the

appointments process. Due publicity to the norms which have been

formulated and are applied would foster a degree of transparency and promote

accountability in decision making at all levels within the judiciary and the

government. The norms may also spell out the criteria followed for assessing

the judges of the district judiciary for higher judicial office. There isa vital

public interest in disclosing the basis on which those with judicial

experience are evaluated for elevation to higher judicial office particularlyhaving

regard to merit, integrity and judicial performance. Placing the criteria followed

in making judicial appointments in the public domain will fulfil the purpose and

mandate of Section 4 of the RTI Act, engender public confidence in the process

and provides a safeguard against extraneous considerations entering into the

process.

.……......................................................J
[Dr Dhananjaya Y Chandrachud]

New Delhi;
November 13, 2019.

113
4/13/24, 2:13 AM CONSUMER PROTECTION COUNCIL VS M. SUNDARAM - Supreme Today AI

1997 2 CLT(NC) 540 ; 1997 2 CPC(NC) 247 ; 1998 2 CPJ(NC) 3 ; 1997 2 CPR(NC) 164

NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI
Honble Mr. Justice V. Balakrishna Eradi, President; Mr. Justice S.S. Chadha
Dr. (Mrs.) R. Thamarajakshi & Mr. S.P. Bagla, Members
CONSUMER PROTECTION COUNCIL AND ORS.—Appellants
versus
DR. M. SUNDARAM AND ANR.—Respondents
First Appeal No. 214 of 1993—Decided on 29.5.1997

Subject: Medical Negligence - Misdiagnosis and Treatment

medical negligence - misdiagnosis - wrong treatment - renal failure - kidney

transplantation - pathological examination - bone marrow sample - Hodgkin's
Lymphoma - Endoxan injections - toxicity - expert evidence - standard of care

Act Referred :
CONSUMER PROTECTION ACT : S.12, S.17

Consumer Protection Act, 1986 - Sections 12 & 17 - Medical negligence - Pathologist

report that sample showed· deposit of Hodgkins Lymphoma - Doctoron that report
administered Endoxan injections to patient - Bone marrow sample later analysed by
an Oncologist gave report that clinical picture did not fit with Hodgkins disease but
patient had Myelopatic anaemia in the marrow - Patient suffered renal failure &
underwent surgical transplantation of kidney - Opp. Party were alleged to have
wrongly diagnosed the ailment as Hodgkins Lymphoma & administered Endoxan &
by toxicity of drug patients kidney cells got destroyed - Evidence showing that O.P.
No.1 before arriving at diagnosis & giving treatment had discussions with
pathologist - Administration of drug for disease was not

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negligence No evidence that renal failure was because of administration of Endoxan

injections - Pathologist was highly qualified - Slides were still available with her if
she offered for re-examination by any other Pathologist which complainant failed
State Commission rightly held no negligence or deficiency in service proved against
doctor & Pathologist. (Paras 6 to 8)

Result: Appeal dismissed.

Advocates: Counsel for the Parties :

For the Appellants : M.S. Pushpavnam, Authorised Representative.

For the Respondents : Mr. M.N. Krishnamani, Sr. Adv. with Mr. T. Raja & Mr. Parveen
Kumar, Advocates.

ORDER

Mr. Justice V. Balakrishna Eradi, President — The complainants in O.P. No. 206 of 1992
on the file of the State Commission, Tamil Nadu are the appellants in this appeal. This
appeal is directed against the order dated February 15,1993 passed by the State
Commission whereby the complaint petition filed by the appellants was dismissed on
the ground that neither the first opposite party nor the second opposite party (two
medical doctors against whom the complainants had madeallegations of negligence
and deficiency in service and had sought recovery of compensation) was guilty of any
negligence or deficiency in service.

2. The complaint was instituted by a well known Consumer Organisation of Tamil

Nadu by name Consumer Protection Council, Tamil Nadu, Trichy for the benefit of one
Mrs. Rajalakshmi. The said lady died on November 13,1992 during the pendency of
the case before the State Commission, In brief the case put forward in the complaint
was as follows:

3. Mrs. Rajalakshmi was admitted in Nursing Home that is being run by opposite party
No.1-Dr Sundaram on August 1,1991 win in complaint of vomitting. It is the plea of
the complainants that the first opposite party negligently suspected cancer and hence
had a bone marrow sample of the patient taken and sent to the second opposite
party-Dr. S. Anuradha for pathological examination. According to the

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complainants the second opposite party acting negligently gave a report on 2.8.1991
stating that the sample showed a deposit of Hodgkin's Lymphoma in many areas. The
complainants have gone on the state that without referring the case tothe Cancer
Specialist or taking a second opinion, opposite party No.1 started administering
Endoxan injections to the patient and five doses of the said drugwere given to
her during the period of five days from 6.8.1991 to 10.8.1991. Thereafter Mrs.
Rajalakshmi is said to have been referred by the first opposite party to one Dr.
Navaneetha Krishnan an E.N.T. Specialist, who after examining her on 6.8.1991 opined
that no lymph gland was seen. Allegedly becoming unsure of diagnosis and treatment
the first opposite party is said to have sent a slide of the bone marrow sample to one
Dr. Subramaniam an Oncologist during his visit toTrichy. Dr. Subramaniam after
seeing the slides is said to have given his reportstating that the clinical picture
does not fit with Hodgkin's disease but the patienthad Myclopthylic anaemia in the
marrow. Mrs. Rajalakshmi was thereafter discharged from the Nursing Home of the
first opposite party on 14.8.1991. Subsequently, she again came to the first opposite
party on 26.8.1991 and though she was admitted as in-patient, she was discharged on
27.8.1991. The first opposite party had advised the patient to go to the Christian
Medical College Hospital, Vellore for further treatment of the Cancer ailment and
had given a letter of introduction to the concerned Head of Department of that
Institution. However, the patient did not follow the advice as given by Dr. Sundaram.
Instead, she is said have consulted one Dr. Bosco of City Hospital, Trichy on 5.9.1991
whose diagnosis was that she had renal failure. Subsequently, Mrs. Rajalakshmi
underwent surgical transplantation of her kidney on 29.9.1991 at the Kidney Medical
Centre, Trichy. In connection with her treatment at that Centre, her bone marrow
samples had been sent for being examined by Pathologists on three occasions in
September, 1991 and all the reports were to the effect that the samples did not show
any Hodgkin's deposit.

The complainants have put forward the case that the opposite party No.1 had wrongly
diagnosed the ailment of Mrs. Rajalakshmi as Hodgkin's Lymphoma which was a type
of cancer and had unnecessarily administered to her injections of Endoxan and it was
because of the toxicity of that drug that her kidney cells got destroyed resulting in
renal failure for which she had to undergo kidney transplantation, which led to her
death.

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4. The complainants have also put forward the case that the second opposite party-
Dr.S. Anuradha, Consulting Pathologist had acted with gross negligence in the matter
of examining the bone marrow samples sent to her for pathological examination and
had forwarded a report to Dr. Sundaram containing the wrong statement that the
samples showed a deposit of Hodgkin's Lymphoma in manyareas.

5. Both the opposite parties filed detailed written statements denying theallegations
of negligence, wrong diagnosis, etc. and also refuting strongly the complainants
allegations that the administration of Endoxan injection had led to renal failure.

6. The State Commission has discussed threadbare the entire evidence in the case
with a view to determine the main issue arising in the case as to whether the
charge of medical negligence levelled against the two opposite parties have been
substantiated by the complainants. It found after careful review of all the materials
on record pertaining to the pathological investigations, diagnosis and the treatment
given to Mrs. Rajalakshmi in the Nursing Home of Dr. Sundaram (opposite party
No.1) that instead of hastily acting on the basis of first pathology report received from
opposite party No.2, Dr. Sundaram met the pathologist namely the second opposite
party and discussed the case with her and in the light of those discussions some more
slides with bone marrow specimens of the patient were sent to her andit was only
after study of all those slides also revealed the same finding namely existence of
deposit of Hodgkin's Lymphoma in many areas that Dr. Sundaram proceeded to
administer to the patient injections of Endoxan of 500 mg. intravenous. We are in
complete agreement with the said finding entered by the State Commission as it is
fully supported by the evidence on record. Any prudent Consultant Physician of the
standing of Dr. Sundaram will not delay the commencement of the chemotherapy
treatment when repeated examinations ofthe bone marrow slides had yielded the
report that Hodgkin's deposits were present. It has clearly emerged from the expert
evidence available on record that Endoxan is the drug of choice in the treatment of
Hodgkin's Lymphoma. No negligence or deficiency in service can therefore, be
attributed to the first opposite party on the ground of his having given injections of
Endoxan to Mrs. Rajalakshmi during the 5 days from 6.8.1991 to 10.8.1991.

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7. The allegation of the complainants that it is as a result of the administration of

Endoxan and the toxicity of the said drug that the renal functions of Mrs. Rajalakshmi
became impaired has not been substantiated by any acceptable evidence. Exhibit B-1
which is the case summary relating to the treatment of Mrs. Rajalakshmi in the
Nursing Home of opposite party No.1 from 1.8.1991 to 14.8.1991 discloses that the
renal functions of the patient were being periodically monitored and they were found
to be perfectly normal. Again when Mrs. Rajalakshmi was admitted in the Nursing
Home on 26.8.1991, Dr. Sundaram had found after conducting relevant test that her
renal functions were fully normal. Except for making a bare assertion that the renal
failure that had occurred in thecase of Mrs. Rajalakshmi had been caused by the
administration of Endoxan injections; the complainants have not adduced any
acceptable evidence whateverin support of the said plea. No medical expert nor even
the doctor who had treated Mrs. Rajalakshmi for the renal failure has been examined
on the side of the complainants. Such being the state of the evidence, the State
Commission was, inour opinion, perfectly right in rejecting the aforesaid plea put
forward by the complainants.

8. We are also in total agreement with the finding of the State Commission that no
negligence of any kind has been established as against the second opposite party-
Dr.Anuradha who had conducted the pathological examination of the bone marrow
samples which were sent to her for pathological examination by Dr. Sundaram. It
has come out in the evidence that Dr. Anuradha (opposite party No. 2) is a highly
qualified Pathologist who holds a M.D. Degree in that speciality and she has also
undergone training in Cytology, Immunology and Cyto- genetics from reputed
institutions. She has published Articles in National and International journals and is
recepient of Gold and Silver Medal for her papers. A mere assertion by the
complainants that the findings incorporated in the reports forwarded by her to Dr.
Sundaram were wrong is totally insufficient to hold her guilty of negligence. It is
worthy of note that those very slides were still available in her possession and she was
willing to part with them for re- examination by any other Pathologist when the case
was pending before the State Commission. Inspite of it, the complainants did not take
any steps to get those slides re-examined by any other Pathologist. Inthese
circumstances, we have no hesitation to confirm the finding of the State

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Commission that the complainants have miserably failed in establishing their charge
for negligence as against the second opposite party also.

9. In the light of the foregoing discussion, we hold that there is absolutely no merit
in this appeal and is only to be dismissed. We accordingly dismiss this appeal but, in
the circumstances, we do not make any order as to costs.

Appeal dismissed.

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 200 CASES DECIDED I N TH E 1955 S. C.

No. 19. MES JEMIMA GALLOWAY OR HUNTER, Pursuer

(Reclaimer).—Stott, Q.G.—Kissen.
Feb. 4, 1955.
JOH N M'DIAEMUI D HANLEY , Defender (Respondent).—
H
H uunntteer v. Leslie, Q.G.—Grieve.
Hanley.
Separation—Negligence—Medical practitioner—Departure from normal
practice—Test of liability—Standard of care required—" Gross negli•
gence."
In an action of damages against a doctor, the pursuer, who had
suffered injury as a result of the breaking of a hypodermic needle
while she was receiving an injection, alleged that the accident
had been caused by the fault and negligence of the defender in
failing to exercise the standard of care and competence which it
was his duty to display in giving the injection. At the trial the
presiding Judge directed the jury in the course of his charge that
the test to be applied was whether there had been such a departure
from the normal and usual practice of general practitioners as
could reasonably be described as gross negligence. The jury-
having returned a verdict for the defender, the pursuer enrolled
a motion for a new trial on the ground of misdirection.
Held that the direction given by the presiding Judge had not
set out accurately the legal criterion for liability and that there must
be a new trial.
Per the Lord President : "T o establish liability by a doctor where
deviation from normal practice is alleged, three facts require to be
established. First of all it must be proved that there is a usual and
normal practice ; secondly it must be proved that the defender has
not adopted that practice ; and thirdly (and this is of crucial
importance) it must be established that the course the doctor
adopted is one which no professional man of ordinary skill would
have taken if he had been acting with ordinary care."
Observations on the conception of " gross negligence " as a
criterion of liability in civil cases.

1ST DIVISION. MRS JEMIMA GALLOWAY OE HTJNTEE brought an action against

T nn
and^u*" * ® J° M'Diarmuid Hanley, concluding for payment of £2500
as damages for personal injuries received by her as a result of
his professional negligence.
The pursuer averred, inter alia :—(Cond. 2) " The pursuer, who
for some time prior to November 1951 had been a patient of the
defender, was latterly being treated by him for chest troubles by
intra-muscular injections of penicillin. On or about 24th
November 1951 she was attending him at his surgery for an intra•
muscular injection into the right hip. This was the twelfth of a
series of twelve injections which she was receiving from the
defender. She had previously received a course of twelve injec•
tions from the defender during the previous September. As she
was receiving said injection from the defender, the hypodermic
needle which was being used by the defender for said injection
broke and part of it remained in her body in the soft tissues
between the right side of the pelvis and the lower ribs. She was
sent by him to the Glasgow Royal Infirmary, where she under•
went the course of treatment hereinafter condescended on. As a
result of said accident she sustained the injuries and suffered the
1955 S. C. COURT OF SESSION, &c. 201

sequelae, hereinafter condescended on. With reference to the Feb. 4,1955.

defender's averments in answer, not known and not admitted
that the needle used by the defender was a 16 needle. Denied Hanley.
in particular that the breaking of the needle was an accident.
Explained and averred that the breaking of the needle was due to
the defender's negligence, as hereinafter condescended upon. Esto
the needle used was a 16 needle, it was unsuitable for the purpose, and
reference is made to condescendence 3. Quoad ultra denied, so far
as not coinciding herewith." (Cond. 3) " The said accident was due
to the fault and negligence of the defender. I t was his duty to exercise
due and proper care, caution and diligence in his treatment of the
pursuer and, particularly, when treating her by injections on said day.
In pursuance of the standard of care and competence which it was
his duty to display, he should have used a needle which was suitable
and of adequate strength for the purpose of an intra-muscular
injection, so that the deep fascia or sheaths of the muscle could have
been safely penetrated. He should not have subjected the needle
which he used to a strain and pressure for which it was not suited,
and should not have used it for a purpose for which it was not suited
or intended. He should not have used a hypodermic needle of a
type which is not designed to penetrate to depth but is designed
for depositing material under the skin. For the deposit of serum,
involving the penetration of the deep fascia or sheaths of the muscle,
a coarser needle should have been used. In particular a serum needle or
a much coarser and stronger hypodermic needle ought to have been
used—No. 1 or 2. Such a needle would have been able to stand
the pressure and strain of such an injection, whereas the type of needle
used was not sufficiently strong to do so. Any doctor possessing fair
and average knowledge of his profession would know this, and, in
failing to take care to use the proper type of needle, the defender was
guilty of gross negligence. In any event, esto the defender used a
type of needle which according to its type was safe and sufficient for
the purpose (which is denied), he should have seen to it that the
needle which he used for said injection had been properly maintained
and was in fact safe and sufficient for its purpose. In these duties he
failed and so caused the said acci• dent "
The following issue was approved for the trial of the cause :—
" Whether the accident to the pursuer on or about 24th November
1951 at the defender's surgery at 686 Gallowgate, Glasgow, was
caused by the fault of the defender ? Damages claimed
£2500."
On 16th July 1954 the trial took place before Lord Patrick and
a jury, and at the conclusion of the presiding Judge's charge counsel
for the pursuer intimated that he desired to except to that portion
of the charge which dealt with the standard of care required of the
defender.
The note of exceptions was in the following terms :—" Stott for
the pursuer respectfully excepted to that portion of the presiding
Judge's charge wherein his Lordship directed the
 202 CASES DECIDED I N THE 1955 S. C.

Feb. 4,1955. jury as follows: ' There must be such a departure from the
„ ~~ normal and usual practice of general practitioners as can reason-
Hanley. ably be described as gross negligence. I could use from cases
of high authority in the House of Lords, Scots cases, much
stronger adjectives than that, but all that I will say to you in conclusion
on the general topic is that there must be a serious departure from a
normal practice, if that normal practice has been proved, and the
serious departure must involve a sub• stantial and serious fault' ;
and requested his Lordship to direct the jury that there must be a
departure from normal and proper practice which involves fault [and
which is not justified by the circumstances of the case] which
direction his Lordship refused to give ; whereupon counsel for the
pursuer respectfully excepted.
(Sgd.) GORDON STOTT.
" I have no note and no recollection of being asked to direct the
jury in terms of the passage within square brackets.
(Sgd.) W. D. PATRICK."
The jury having returned a verdict for the defender, the pursuer
enrolled a motion for a new trial on the ground of mis• direction by
the presiding Judge.
The case was heard before the First Division, with Lord Patrick,
on 20th January 1955.
Argued for the pursuer (reclaimer);—The presiding Judge had
erred in directing the jury that the standard of care required from a
medical practitioner differed from the ordinary common law
standard. If a duty of care was owed, any breach of that duty
involving fault or negligence gave rise to liability, the standard by
which the existence of fault was determined being that of the
reasonable man. 1 Equally, if the pursuer's evidence sufficed to
establish facts from which such negligence was capable of being
inferred, it was for the jury to decide whether it should reasonably be
inferred and to determine what degree of care was requisite in the
circumstances. 2 There were no degrees of negligence, as the Lord
Ordinary had implied, 3 and there was no different liability in the case
of a professional man. The concept of gross negligence as a criterion
for the liability of professional men derived from the old cases dealing
with liability of law agents and referred to the contract between agent
and client. 4 In an action of reparation such as the present the basis
was negligence and the standard that of reasonable care in the
circumstances. 5 The only reported case in Scotland dealing with
the liability of a
1
Donoghue v. Stevenson, 1932 S. C. (H. L.) 31, [1932] A. C. 562.
2
Hendry v. Clan Line Steamers, 1949 S. C. 320 ; Caswell v. Powell
Duffryn Associated Collieries, [1940] A. C. 152, Lord Wright at p. 176 ;
Winfield on Tort, (6th ed.) p. 498.
3
Mackintosh v. Mackintosh, (1864) 2 Macph. 1357.
4
Hart v. Frame & Co., (1839) M'L. & Rob. 595 ; Purves v. Landell, (1845)
4 Bell's App. 46 ; Cooke v. Falconer's Representatives, (1850) 13 D. 157
; Hamilton v. Emslie, (1868) 7 Macph. 173 ; Blair v. Assets Co., (1896) 23
R. (H. L.) 36, [1896] A. C. 409.
5
Glegg on Reparation, (3rd ed.) pp. 508-509.
1955 S. C. COURT OF SESSION, &c. 203
medical practitioner had applied the ordinary standard of negli- Feb. 4, 1955.
gence, 1 and this was the standard applied in England. 2 Crassa ~~.—
negligentia or gross negligence related only to criminal liability Hantey.V*
and should not be applied as a standard in civil cases.3The
direction excepted to had been mistaken in law, and, but for that
direction, the jury might have arrived at a different result. For these
reasons the motion should be granted.
Argued for the defender (respondent) ;—The charge given to the
jury had correctly stated their responsibilities by saying that
they would have to be satisfied that the defender had so far
departed from normal and usual practice as to be guilty of
gross negligence. In using the phrase gross negligence in this context
the Lord Ordinary had followed the test applied in earlier cases *
and stated by the leading text-writer in Scotland. 5 I t did not mean
that a doctor or a professional man had a greater immunity from his civil
responsibility than a layman, but that, where there was a normal or
usual practice, he was not at fault unless he departed greatly from it. 6
No medical man could guarantee that a particular operation or
treatment would have a successful result, and the fact that something
went wrong was not indicative in any way of negligence.7 For this
reason the ordinary test of whether negligence was reasonably
inferred would have been inappropriate in the present case without
explanation of the special circumstances of medical practice. 8 In any
event the pursuer had perilled her case on the allegation of gross
negligence, since this was the basis of her first case on record against
the defender. The Lord Ordinary had correctly charged the jury
in the light of the pursuer's own case, and she was now barred from
presenting her present argument. The motion should be refused, and
the verdict allowed to stand.
At advising on 4th February 1955,—

LORD PRESIDENT (Clyde).—This is a note of exceptions, brought before

us by the pursuer in an action against a doctor for professional negligence.
The case was tried before Lord Patrick and a jury, and a verdict for the
defender was obtained. The case arose out of the
1
Farquhar v. Murray, (1901) 3 F. 859.
2
Collins v. Hertfordshire County Council, [1947] K. B. 598 ; White- ford
v. Hunter, [1950] W. N. 553 ; Jones v. Manchester Corporation, [1952] 2
Q. B. 852 ; Winfield on Tort, (6th ed.) pp. 492-493 ; Salmond on Torts,
(11th ed.) p. 511.
3
Akerele v. The King, [1943] A. C. 255, Lord Porter at p. 262 ; Pentecost
v. London District Auditor, [1951] 2 K. B. 759, Lord Goddard, C.J., at
p. 766.
4
Free Church of Scotland v. MacKnight's Trustees, 1916 S. C. 349 ;
Shane v. Girvan, 1927 S. L. T. 460 ; Bell v. Strathern & Blair, 11th June
1954, Lord Strachan (unreported).
5
Glegg on Reparation, (3rd ed.) pp. 508-509. Salmond on Torts, (11th
ed.) p. 511, was referred to.
6
Winfield on Tort, (6th ed.) pp. 496-497.
7
Roe v. Minister of Health, [1954] 2 W. L. R. 915.
8
Glaister, Forensic Medicine, (9th ed.) pp. 11-12, was referred to.
 204 CASES DECIDE D I N TH E 1955 S. C.

Feb. 4, 1955. breaking of a hypodermic needle when the defender was giving the
Hunter v pursuer the twelfth of a series of injections of penicillin. One of the
Hanley. grounds of fault alleged against the defender was that the type of
Lord needle employed on the occasion in question was not strong enough,
President. and that " any doctor possessing a fair and average knowledge of his
profession would have known this." A question therefore arose at the
trial regarding what was the normal and usual practice in regard to the
type of needle required. I n the course of his charge to the jury Lord
Patrick directed them as follows on this matter : " There must be such
a departure from the normal and usual practice of general practitioners as
can reasonably be described as gross negligence. I could use from cases of
high authority in the House of Lords, Scots cases, much stronger
adjectives than that, but all that I will say to you in conclusion on the
general topic is that there must be a serious departure from a normal practice,
if that normal practice has been proved, and the serious departure must
involve a substantial and serious fault." Counsel for the pursuer excepted
to this direction, and requested the Judge to direct the jury that there
must be a departure from normal practice which involves fault. This
direction his Lordship refused to give. I am clearly of opinion that he was
right in so refusing, as the direction asked for is plainly too vague to assist
the jury at all.
The question still remains, however, as to whether the direction actually
given is sound in law. The reference to " gross negligence " in the
direction given no doubt springs partly from the fact that the words are
employed throughout her pleadings by the pursuer in regard to the
allegations she makes of deviation from the alleged practice, and, from
that point of view, her pleadings certainly leave much to be desired in the
way of fair notice of the case she now makes. For her real contention
before us was that " gross negligence " was not the test of liability. But,
although I have considerable sympathy with the technical argument on the
pleadings—to the effect that the contention now presented by the pursuer is
not open to her—I have come to the conclusion that it cannot absolve
us from determining the soundness or otherwise of the direction given.
For the averments of the pursuer are general enough to cover the case
developed before us in argument.
To succeed in an action based on negligence, whether against a doctor
or against anyone else, it is of course necessary to establish a breach
of that duty to take care which the law requires, and the degree of want
of care which constitutes negligence must vary with the circumstances—
^-Caswell v. Poivell Duffryn Associated Collieries,1 per Lord Wright at
pp. 175-176. But where the conduct of a doctor, or indeed of any
professional man, is concerned, the circumstances are not so precise
and clear cut as in the normal case. In the realm of diagnosis and
treatment there is ample scope for genuine difference of opinion and one
man clearly is not negligent merely because his

1
[1940] A. C. 152.
1955 S. C. COURT OF SESSION, &c. 205

conclusion differs from that of other professional men, nor because Feb. 4, 1955.
he has displayed less skill or knowledge than others would have shown. „ t~
The true test for establishing negligence in diagnosis or treatment onHanley.
the part of a doctor is whether he has been proved to be guilty of-r ,
such failure as no doctor of ordinary skill would be guilty of if acting President,
with ordinary care—Glegg, Reparation, (3rd ed.) p. 509. The standard
seems to be the same in England—Salmond, Torts, (11th ed.) p. 511.
It is a tribute to the high standard in general of the medical profession
in Scotland that there are practically no decisions on this question
in the reported cases. Farquhar v. Murray 1 sheds little light on the general
question, as it turned wholly on the facts. An analogy, however, is
afforded by a series of decisions, mostly pronounced many years ago, in
regard to allegations of professional negligence on the part of law agents
advising their clients—Hart v. Frame & Co2 ; Purves v. Landell 3 ;
Cooke v. Falconer's Representatives 4 ; Hamilton
v. Emslie 5 ; Blair v. Assets Co.8 In all these cases mere errors in interpreting
the law or lack of knowledge of the law are not treated as constituting
negligence. As the Lord Chancellor put it in Hart v. Frame,2 (at p. 614) : "
Professional men, possessed of a reasonable portion of information and
skill, according to the duties they under• take to perform, and exercising
what they so possess with reasonable care and diligence in the affairs of
their employers, certainly ought not to be liable for errors in judgment,
whether in matters of law or of discretion. Every case, therefore, must
depend on its own peculiar circumstances ; and when an injury has been
sustained, which could not have arisen except from the want of such
reasonable information and skill, or the absence of such reasonable skill and
diligence, the law holds the attorney liable."
In several of the opinions in these cases the words " gross negli• gence
" are used. The use of such a criterion as the test of liability has been
more than once criticised. Eor instance, Baron Rolfe in Wilson v. Brett7
says (at p. 115) : " I said I could see no difference between negligence and
gross negligence—that it was the same thing, with the addition of a
vituperative epithet." But the compendious description " gross
negligence," " culpa lata," " crassa negligentia " has frequently been
adopted, in deciding Scottish appeals in the House of Lords, as the test of
liability of trustees claiming protection under an immunity clause in the
trust deed, e.g., Lord Watson in Knox v. Mac- Icinnon,8 Lord Herschell,
Lord Watson and Lord Fitzgerald in Raes
v. Meek,9 Lord Herschell and Lord Watson in Carruthers v. Carruthers,10
Lord Halsbury, Lord Morris, Lord Shand, Lord Davey and Lord
Macnaghten in Wyman v. Paterson.11 I am not therefore prepared to
I 2
3 F. 859. M'L. and Rob. 595.
3 4
4 BeU's App. 46. 13 D. 157.
5 6
7 Macph. 173. 23 R. (H. L.) 36.
7 8
(1843) 11 M. & W. 113. (1888) 15 R. (H. L.) 83.
9 10
(1889) 16 R. (H. L.) 31. (1896) 23 R. (H. L.) 55.
II
(1900) 2 F. (H. L.) 37.
 206 CASES DECIDED I N THE 1955 S. C.

Feb. 4, 1955. say that the concept of gross negligence forms no part of the law of
HunteTT. Scotland to-day.
Hartley. In relation, however, to professional negligence, I regard the phrase
Lord " g 1088 negligence " only as indicating so marked a departure from the
President. normal standard of conduct of a professional man as to infer a lack of
that ordinary care which a man of ordinary skill would display. So
interpreted, the words aptly describe what I consider the sound criterion
in the matter, although, strictly viewed, they might give the impression
that there are degrees of negligence.
It follows from what I have said that in regard to allegations of deviation
from ordinary professional practice—and this is the matter with which
the present note is concerned—such a deviation is not necessarily evidence
of negligence. Indeed it would be disastrous if this were so, for all
inducement to progress in medical science would then be destroyed. Even
a substantial deviation from normal practice may be warranted by the
particular circumstances. To establish liability by a doctor where deviation
from normal practice is alleged, three facts require to be established.
First of all it must be proved that there is a usual and normal practice ;
secondly it must be proved that the defender has not adopted that
practice ; and thirdly (and this is of crucial importance) it must be
established that the course the doctor adopted is one which no
professional man of ordinary skill would have taken if he had been acting
with ordinary care. There is clearly a heavy onus on a pursuer to establish
these three facts, and without all three his case will fail. If this is the test,
then it matters nothing how far or how little he deviates from the
ordinary practice. For the extent of deviation is not the test. The
deviation must be of a kind which satisfies the third of the requirements
just stated.
In these circumstances the direction given in the present case does not,
in my view, accurately set out the legal criterion for liability, and the
jury's verdict therefore cannot stand.

LORD CARMONT concurred.

LORD RUSSELL.—I agree with the opinion of your Lordship in the chair.
I desire to add a few words in relation to the question whether the phrase
objected to in the direction under review, when consideredin its context,
could possibly have misled the jury in respect of the burden of proof
resting on the pursuer. In the direction of the presiding Judge, as set out in
the note of exceptions, reference is made to Scots cases of high authority
in the House of Lords in which in civil actions the words " gross negligence
" had been used by a number of their Lordships. Apart from the very old
decisions mentioned by your Lordship it is true that, in a series of cases
decided in the closing years of last century, the term " gross negligence
" was so applied in the House of Lords to acts or omissions of trustees,
who were held personally liable for loss of trust funds through neglect
of ordinary
 1955 S. C. COURT OF SESSION, &c. 207

prudence amounting to breach of trust—see, e.g., Knox1; Raes2 ;Feb. 4, 1955.

Carruihers 3 ; Wyman.i In each of those cases the trustees were non- Hunt ~^
professional men, administering trust funds as gratuitous trustees, Hanley.
and their conduct in each case was characterised as amounting to such L ra~R~ il
neglect of ordinary prudence as amounted to culpa lata ; and it was
held that they had in the circumstances been guilty of " gross negli• gence
" and were not protected by an immunity clause excusing them from error
or neglect of management. Apart from such cases it appears to me that in
civil claims based on negligence, and including claims against professional
men, there is, as recognised in recent precedents and practice, only one
standard, viz., the absence of reasonable care in the circumstances or
ordinary culpa. It is, however, recognised that in relation to criminal
responsibility, flowing from negligence, the words " gross negligence "
are not uncommonly used to denote the very high standard of negligence
or recklessness required to establish criminal responsibility—a degree of
negligence which goes beyond a mere case of compensation between
subjects in a civil claim, and is higher than ordinary negligence or
culpa. In that situation I do not find it possible to affirm that in this
ease the use of the words " gross negligence " could not have misled the
jury in respect of the burden of proof which the pursuer had to discharge.

LORD SORN.—It is curious that there should be no reported case in

Scotland in which a decision has been given as to the grounds on which
a doctor can be made liable in damages. In the only doctor's case quoted
to us, Farquhar v. Murray? all that was decided was that the case was
relevant for inquiry, two of the Judges indicating that " gross negligence "
must be proved and the other two not committing them• selves on the
matter. It may be said, however, that, until recent times, the general
impression has been that gross negligence must be proved in order to render
a doctor liable. The impression has been derived from decisions and dicta
pronounced in cases relating to solicitors. Chief among the dicta is the
dictum of Lord Brougham in Purves v. Landell 6 (at p. 57) : " It is of the
very essence of this action that there should be a negligence of a crass
description, which we call crassa negiigentia ; that there should be gross
ignorance ; that the man who has undertaken to perform the duty of an
attorney, or of a surgeon, or of an apothecary (as the case may be), should
have under• taken to perform a duty professionally for which he was very
ill qualified, or if not ill qualified to discharge it, which he had so negli•
gently discharged as to damnify his employer, or deprive him of the benefit
which he had a right to expect from employing him." It may be remarked
that while the opening words of the dictum indicate that something more
than ordinary negligence is required, the words which follow might almost
serve as an illustration of what would now be
1 2
15 R. (H. L.) 83. 16 R. (H. L.) 31.
3
23 R. (H. L.) 55. * 2 F. (H. L.) 37.
6
« 3 F. 859. 4 Bell's App. 46.

14 | P a g e
 208 CASES DECIDED IN THE 1955 S. C.

Feb. 4, 1955. described simply as negligence. It may be noted that in the con•
temporary case of Hart v. Frame & Co.1 Lord Chancellor Cottenham (at
Hunter v.
Hanley. p. 615) does not use the expression " gross negligence " and makes liability
depend upon the presence or absence of " that reasonable degree of
Lord Sorn.
information, skill, care and diligence which is required to protect
professional men from the liability to indemnify their em• ployers
against the consequences of any error they may commit." In a series
of cases relating to solicitors, extending at least to Blair v. Assets Co.,2 we
find references by Judges of the Court of Session to the requirement of
gross negligence or gross ignorance. We are dealing here with the liability
of a doctor and, whatever may be the effect of these decisions upon the
case of a solicitor, I think we must consider the question before us in the
light of more recent authoritative decisions upon the subject of
negligence and liability, and I refer in particular to Stevenson v.
Donoghue3 ; Caswell v. Powell Duffryn Associated Collieries 4 ; and
Akerele v. The King,5 approving Rex v. Bateman.6I think that these
and other cases have resulted in a development which makes it doubtful
whether, in a question of civil liability such as we have here, there remains
any room for the conception of " gross negligence" as distinctfrom
"negligence." Liability follows negligence, and negligence consists in the
failure to fulfil a duty of care. Of course it must be seen to that the
proper test for negligence is applied. Whether it is lack of skill that is
alleged, or lack of diligence, or both, the defender must not be judged by
too high a standard and I endorse what your Lordship has said on this
matter.

LORD PATRICK concurred.

TH E COURT granted the motion and ordered a new trial.

TH O S. J . A B D L Y , SON & Co., S.S.C., for W I L L I A M THO RNTO N, Glasgow—
MACPHEKSON & MACK AY, W.S., for B E O WN , MA IR , GEMMILL & H I S L O P ,
Glasgow.
1 2
M'L. and Rob. 595. 23 R. (H. L.) 36.
3 4
1932 S. C. (H. L.) 31. [1940] A. C. 152.
6 6
[1943] A. C. 255. (1925) 94 L. J. (K. B.)791.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 21

CASE NO.:
Appeal (crl.) 144-145 of 2004

PETITIONER:
Jacob Mathew

RESPONDENT:
State of Punjab & Anr.

DATE OF JUDGMENT: 05/08/2005

BENCH:
CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T

R.C. LAHOTI, CJI

Ashok Kumar Sharma, the respondent no.2 herein filed a First

Information Report with police station, Division No. 3, Ludhiana,
whereupon an offence under Section 304A read with Section 34 of the
Indian Penal Code (for short "the IPC") was registered. The gist of the
information is that on 15.2.1995, the informant’s father, late Jiwan Lal
Sharma was admitted as a patient in a private ward of CMC Hospital,
Ludhiana. On 22.2.1995 at about 11 p.m., Jiwan Lal felt difficulty in
breathing. The complainant’s elder brother, Vijay Sharma who was
present in the room contacted the duty nurse, who in her turn called
some doctor to attend to the patient. No doctor turned up for about
20 to 25 minutes. Then, Dr. Jacob Mathew, the appellant before us
and Dr.Allen Joseph came to the room of the patient. An oxygen
cylinder was brought and connected to the mouth of the patient but
the breathing problem increased further. The patient tried to get up
but the medical staff asked him to remain in the bed. The oxygen
cylinder was found to be empty. There was no other gas cylinder
available in the room. Vijay Sharma went to the adjoining room and
brought a gas cylinder therefrom. However, there was no
arrangement to make the gas cylinder functional and in-between, 5 to
7 minutes were wasted. By this time, another doctor came who
declared that the patient was dead. The latter part of the FIR states
(as per the translation in English as filed by the complainant):\026

"\005\005\005\005\005\005\005\005the death of my father

was occurred due to the carelessness of
doctors and nurses and non availability of
oxygen cylinder and the empty cylinder was
fixed on the mouth of my father and his
breathing was totally stopped hence my
father died. I sent the dead body of my
father to my village for last cremation and
for information I have come to you. Suitable
action be done Sd/- ---- As per statement
of intimator the death of Jiwan Lal Sharma
has occurred due to carelessness of doctors
and nurses concerned and to fit empty gas
cylinder."

On the abovesaid report, an offence under Section 304A/34 IPC

was registered and investigated. Challan was filed against the two
doctors.

The Judicial Magistrate First Class, Ludhiana framed charges

under Section 304A, IPC against the two accused persons, both
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 21
doctors. Both of them filed a revision in the Court of Sessions Judge
submitting that there was no ground for framing charges against
them. The revision was dismissed. The appellant filed a petition in the
High Court under Section 482 of the Code of Criminal Procedure
praying for quashing of the FIR and all the subsequent proceedings.

It was submitted before the High Court that there was no

specific allegation of any act of omission or commission against the
accused persons in the entire plethora of documents comprising the
challan papers filed by the police against them. The learned single
Judge who heard the petition formed an opinion that the plea raised by
the appellant was available to be urged in defence at the trial and,
therefore, a case for quashing the charge was not made out. Vide
order dated 18.12.2002, the High Court dismissed the petition. An
application for recalling the abovesaid order was moved which too was
dismissed on 24.1.2003. Feeling aggrieved by these two orders, the
appellant has filed these appeals by special leave.

According to the appellant, the deceased Jiwan Lal was suffering

from cancer in an advanced stage and as per the information
available, he was, in fact, not being admitted by any hospital in the
country because his being a case of cancer at terminal stage. He was
only required to be kept at home and given proper nursing, food, care
and solace coupled with prayers. But as is apparent from the records,
his sons are very influential persons occupying important positions in
Government. They requested the hospital authorities that come what
may, even on compassionate grounds their father may be admitted in
the hospital for regulated medical treatment and proper management
of diet. It was abundantly made clear to the informant and his other
relations who had accompanied the deceased that the disease was of
such a nature and had attained such gravity, that peace and solace
could only be got at home. But the complainant could prevail over the
doctors and hospital management and got the deceased admitted as
an in-patient. Nevertheless, the patient was treated with utmost care
and caution and given all the required medical assistance by the
doctors and para-medical staff. Every conceivable effort was made by
all the attending staff comprising of doctors and nurses and other
para-medicals to give appropriate medical treatment and the whole
staff danced attendance on the patient but what was ordained to
happen, did happen. The complainant and his relations, who were
misguided or were under mistaken belief as to the facts, lodged police
report against the accused persons \027 wholly unwarranted and
uncalled for.

The matter came up for hearing before a Bench of two learned

judges of this Court. Reliance was placed by the appellant on a recent
two-judge Bench decision of this Court in Dr. Suresh Gupta v. Govt.
of NCT of Delhi and Anr. (2004) 6 SCC 422. The Bench hearing this
appeal doubted the correctness of the view taken in Dr. Suresh
Gupta’s case and vide order dated 9.9.2004 expressed the opinion
that the matter called for consideration by a Bench of three Judges.
This is how the case has come up for hearing before this Bench.

In Dr. Suresh Gupta’s case, the patient, a young man with no

history of any heart ailment, was subjected to an operation performed
by Dr. Suresh Gupta for nasal deformity. The operation was neither
complicated nor serious. The patient died. On investigation, the cause
of death was found to be "not introducing a cuffed endotracheal tube
of proper size as to prevent aspiration of blood from the wound in the
respiratory passage". The Bench formed an opinion that this act
attributed to the doctor, even if accepted to be true, could be
described as an act of negligence as there was lack of due care and
precaution. But, the Court categorically held \026 "for this act of
negligence he may be liable in tort, his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 21
negligent as to make him criminally liable".

The referring Bench in its order dated 9.9.2004 has assigned

two reasons for their disagreement with the view taken in Dr. Suresh
Gupta’s case which are as under:-

(1) Negligence or recklessness being ’gross’ is not a requirement of

Section 304A of IPC and if the view taken in Dr. Suresh
Gupta’s case is to be followed then the word ’gross’ shall have
to be read into Section 304A IPC for fixing criminal liability on a
doctor. Such an approach cannot be countenanced.

(2) Different standards cannot be applied to doctors and others. In

all cases it has to be seen whether the impugned act was rash
or negligent. By carrying out a separate treatment for doctors
by introducing degree of rashness or negligence, violence would
be done to the plain and unambiguous language of section
304A. If by adducing evidence it is proved that there was no
rashness or negligence involved, the trial court dealing with the
matter shall decide appropriately. But a doctor cannot be
placed at a different pedestal for finding out whether rashness
or negligence was involved.

We have heard the learned counsel for the appellant, the

respondent-State and the respondent complainant. As the question of
medical negligence arose for consideration, we thought it fit to issue
notice to Medical Council of India to assist the Court at the time of
hearing which it has done. In addition, a registered society \026 ’People
for Better Treatment’, Kolkata; Delhi Medical Council, Delhi Medical
Association and Indian Medical Association sought for intervention at
the hearing as the issue arising for decision is of vital significance for
the medical profession. They too have been heard. Mainly, the
submissions made by the learned counsel for the parties and the
intervenors have centred around two issues : (i) Is there a difference
in civil and criminal law on the concept of negligence?; and (ii)
whether a different standard is applicable for recording a finding of
negligence when a professional, in particular, a doctor is to be held
guilty of negligence?

With the awareness in the society and the people in general

gathering consciousness about their rights, actions for damages in tort
are on the increase. Not only civil suits are filed, the availability of a
forum for grievance redressal under the Consumer Protection Act,
1986 having jurisdiction to hear complaints against professionals for
’deficiency in service’, which expression is very widely defined in the
Act, has given rise to a large number of complaints against
professionals, in particular against doctors, being filed by the persons
feeling aggrieved. Criminal complaints are being filed against doctors
alleging commission of offences punishable under Section 304A or
Sections 336/337/338 of the IPC alleging rashness or negligence on
the part of the doctors resulting in loss of life or injury (of varying
degree) to the patient. The present one is such a case. The order of
reference has enabled us to examine the concept of ’negligence’, in
particular ’professional negligence’, and as to when and how it does
give rise to an action under the criminal law. We propose to deal with
the issues in the interests of settling the law.

Negligence as a tort
The jurisprudential concept of negligence defies any precise
definition. Eminent jurists and leading judgments have assigned
various meanings to negligence. The concept as has been acceptable
to Indian jurisprudential thought is well-stated in the Law of Torts,
Ratanlal & Dhirajlal (Twenty-fourth Edition 2002, edited by Justice G.P.
Singh). It is stated (at p.441-442) "Negligence is the breach of a
duty caused by the omission to do something which a reasonable man,
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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. Actionable negligence consists in the
neglect of the use of ordinary care or skill towards a person to whom
the defendant owes the duty of observing ordinary care and skill, by
which neglect the plaintiff has suffered injury to his person or
property. \005\005\005\005\005\005\005 The definition involves three constituents of
negligence: (1) A legal duty to exercise due care on the part of the
party complained of towards the party complaining the former’s
conduct within the scope of the duty; (2) breach of the said duty; and
(3) consequential damage. Cause of action for negligence arises only
when damage occurs; for, damage is a necessary ingredient of this
tort."

According to Charlesworth & Percy on Negligence (Tenth Edition,

2001), in current forensic speech, negligence has three meanings.
They are: (i) a state of mind, in which it is opposed to intention; (ii)
careless conduct; and (iii) the breach of duty to take care that is
imposed by either common or statute law. All three meanings are
applicable in different circumstances but any one of them does not
necessarily exclude the other meanings. (Para 1.01) The essential
components of negligence, as recognized, are three: "duty", "breach"
and "resulting damage", that is to say:-
1. the existence of a duty to take care, which is
owed by the defendant to the complainant;

2. the failure to attain that standard of care,

prescribed by the law, thereby committing a
breach of such duty; and

3. damage, which is both causally connected

with such breach and recognized by the law,
has been suffered by the complainant. (Para
1.23)

If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence. (Para 1.24)

Negligence as a tort and as a crime

The term ’negligence’ is used for the purpose of fastening the
defendant with liability under the Civil Law and, at times, under the
Criminal Law. It is contended on behalf of the respondents that in
both the jurisdictions, negligence is negligence, and jurisprudentially
no distinction can be drawn between negligence under civil law and
negligence under criminal law. The submission so made cannot be
countenanced inasmuch as it is based upon a total departure from the
established terrain of thought running ever since the beginning of the
emergence of the concept of negligence upto the modern times.
Generally speaking, it is the amount of damages incurred which is
determinative of the extent of liability in tort; but in criminal law it is
not the amount of damages but the amount and degree of negligence
that is determinative of liability. To fasten liability in Criminal Law, the
degree of negligence has to be higher than that of negligence enough
to fasten liability for damages in Civil Law. The essential ingredient of
mens rea cannot be excluded from consideration when the charge in a
criminal court consists of criminal negligence. In R. v. Lawrence,
[1981] 1 All ER 974 (HL), Lord Diplock spoke in a Bench of five and
the other Law Lords agreed with him. He reiterated his opinion in R.
v. Caldwell 1981(1) All ER 961 (HL) and dealt with the concept of
recklessness as constituting mens rea in criminal law. His Lordship
warned against adopting the simplistic approach of treating all
problems of criminal liability as soluble by classifying the test of
liability as being "subjective" or "objective", and said "Recklessness on
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the part of the doer of an act does presuppose that there is something
in the circumstances that would have drawn the attention of an
ordinary prudent individual to the possibility that his act was capable
of causing the kind of serious harmful consequences that the section
which creates the offence was intended to prevent, and that the risk of
those harmful consequences occurring was not so slight that an
ordinary prudent individual would feel justified in treating them as
negligible. It is only when this is so that the doer of the act is acting
’recklessly’ if, before doing the act, he either fails to give any thought
to the possibility of there being any such risk or, having recognized
that there was such risk, he nevertheless goes on to do it."

The moral culpability of recklessness is not located in a desire to

cause harm. It resides in the proximity of the reckless state of mind
to the state of mind present when there is an intention to cause harm.
There is, in other words, a disregard for the possible consequences.
The consequences entailed in the risk may not be wanted, and indeed
the actor may hope that they do not occur, but this hope nevertheless
fails to inhibit the taking of the risk. Certain types of violation, called
optimizing violations, may be motivated by thrill-seeking. These are
clearly reckless.

In order to hold the existence of criminal rashness or criminal

negligence it shall have to be found out that the rashness was of such
a degree as to amount to taking a hazard knowing that the hazard was
of such a degree that injury was most likely imminent. The element of
criminality is introduced by the accused having run the risk of doing
such an act with recklessness and indifference to the consequences.
Lord Atkin in his speech in Andrews v. Director of Public
Prosecutions, [1937] A.C. 576, stated, "Simple lack of care \027 such
as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a very high degree
of negligence is required to be proved before the felony is
established." Thus, a clear distinction exists between "simple lack of
care" incurring civil liability and "very high degree of negligence" which
is required in criminal cases. Lord Porter said in his speech in the
same case "A higher degree of negligence has always been
demanded in order to establish a criminal offence than is sufficient to
create civil liability. (Charlesworth & Percy, ibid, Para 1.13)

The fore-quoted statement of law in Andrews has been noted

with approval by this Court in Syad Akbar v. State of Karnataka
(1980) 1 SCC 30. The Supreme Court has dealt with and pointed out
with reasons the distinction between negligence in civil law and in
criminal law. Their Lordships have opined that there is a marked
difference as to the effect of evidence, viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere preponderance of
probability is sufficient, and the defendant is not necessarily entitled to
the benefit of every reasonable doubt; but in criminal proceedings, the
persuasion of guilt must amount to such a moral certainty as
convinces the mind of the Court, as a reasonable man, beyond all
reasonable doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be
culpable or gross and not the negligence merely based upon an error
of judgment.

Law laid down by Straight, J. in the case Reg v. Idu Beg

(1881) 3 All. 776, has been held good in cases and noticed in
Bhalchandra Waman Pathe v. State of Maharashtra 1968 Mh.L.J.
423 ? a three-Judge Bench decision of this Court. It has been held
that while negligence is an omission to do something which a
reasonable man, guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to exercise that
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reasonable and proper care and precaution to guard against injury
either to the public generally or to an individual in particular, which
having regard to all the circumstances out of which the charge has
arisen, it was the imperative duty of the accused person to have
adopted.

In our opinion, the factor of grossness or degree does assume

significance while drawing distinction in negligence actionable in tort
and negligence punishable as a crime. To be latter, the negligence has
to be gross or of a very high degree.

Negligence by professionals
In the law of negligence, professionals such as lawyers, doctors,
architects and others are included in the category of persons
professing some special skill or skilled persons generally. Any task
which is required to be performed with a special skill would generally
be admitted or undertaken to be performed only if the person
possesses the requisite skill for performing that task. Any reasonable
man entering into a profession which requires a particular level of
learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to
possess shall be exercised and exercised with reasonable degree of
care and caution. He does not assure his client of the result. A lawyer
does not tell his client that the client shall win the case in all
circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that
the result of surgery would invariably be beneficial, much less to the
extent of 100% for the person operated on. The only assurance which
such a professional can give or can be understood to have given by
implication is that he is possessed of the requisite skill in that branch
of profession which he is practising and while undertaking the
performance of the task entrusted to him he would be exercising his
skill with reasonable competence. This is all what the person
approaching the professional can expect. Judged by this standard, a
professional may be held liable for negligence on one of two findings:
either he was not possessed of the requisite skill which he professed to
have possessed, or, he did not exercise, with reasonable competence
in the given case, the skill which he did possess. The standard to be
applied for judging, whether the person charged has been negligent or
not, would be that of an ordinary competent person exercising
ordinary skill in that profession. It is not necessary for every
professional to possess the highest level of expertise in that branch
which he practices. In Michael Hyde and Associates v. J.D.
Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that
where a profession embraces a range of views as to what is an
acceptable standard of conduct, the competence of the defendant is to
be judged by the lowest standard that would be regarded as
acceptable. (Charlesworth & Percy, ibid, Para 8.03)

Oft’quoted passage defining negligence by professionals,

generally and not necessarily confined to doctors, is to be found in the
opinion of McNair J. in Bolam v. Friern Hospital Management
Committee, [1957] 1 W.L.R. 582, 586 in the following words:
"Where you get a situation which involves the
use of some special skill or competence, then the
test as to whether there has been negligence or not
is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man
exercising and professing to have that special skill .
. . A man need not possess the highest expert skill;
it is well established law that it is sufficient if he
exercises the ordinary skill of an ordinary
competent man exercising that particular art."
(Charlesworth & Percy, ibid, Para 8.02)
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The water of Bolam test has ever since flown and passed under
several bridges, having been cited and dealt with in several judicial
pronouncements, one after the other and has continued to be well
received by every shore it has touched as neat, clean and well-
condensed one. After a review of various authorities Bingham L.J. in
his speech in Eckersley v. Binnie, [1988] 18 Con.L.R. 1, 79
summarised the Bolam test in the following words:-
"From these general statements it follows that a
professional man should command the corpus of
knowledge which forms part of the professional
equipment of the ordinary member of his
profession. He should not lag behind other
ordinary assiduous and intelligent members of his
profession in knowledge of new advances,
discoveries and developments in his field. He
should have such an awareness as an ordinarily
competent practitioner would have of the
deficiencies in his knowledge and the limitations on
his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the
extent that other ordinarily competent members of
the profession would be alert. He must bring to
any professional task he undertakes no less
expertise, skill and care than other ordinarily
competent members of his profession would bring,
but need bring no more. The standard is that of
the reasonable average. The law does not require
of a professional man that he be a paragon
combining the qualities of polymath and prophet."
(Charlesworth & Percy, ibid, Para 8.04)

The degree of skill and care required by a medical practitioner is

so stated in Halsbury’s Laws of England (Fourth Edition, Vol.30,
Para 35):-
"The practitioner must bring to his task a
reasonable degree of skill and knowledge, and
must exercise a reasonable degree of care. Neither
the very highest nor a very low degree of care and
competence, judged in the light of the particular
circumstances of each case, is what the law
requires, and a person is not liable in negligence
because someone else of greater skill and
knowledge would have prescribed different
treatment or operated in a different way; nor is he
guilty of negligence if he has acted in accordance
with a practice accepted as proper by a responsible
body of medical men skilled in that particular art,
even though a body of adverse opinion also existed
among medical men.

Deviation from normal practice is not

necessarily evidence of negligence. To establish
liability on that basis it must be shown (1) that
there is a usual and normal practice; (2) that the
defendant has not adopted it; and (3) that the
course in fact adopted is one no professional man
of ordinary skill would have taken had he been
acting with ordinary care."

Abovesaid three tests have also been stated as determinative of

negligence in professional practice by Charlesworth & Percy in their
celebrated work on Negligence (ibid, para 8.110)

In the opinion of Lord Denning, as expressed in Hucks v. Cole,

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[1968] 118 New LJ 469, a medical practitioner was not to be held
liable simply because things went wrong from mischance or
misadventure or through an error of judgment in choosing one
reasonable course of treatment in preference of another. A medical
practitioner would be liable only where his conduct fell below that of
the standards of a reasonably competent practitioner in his field.

The decision of House of Lords in Maynard v. West Midlands

Regional Health Authority, [1985] 1 All ER 635 (HL) by a Bench
consisting of five Law Lords has been accepted as having settled the
law on the point by holding that it is not enough to show that there is
a body of competent professional opinion which considers that decision
of the defendant professional was a wrong decision, if there also exists
a body of professional opinion, equally competent, which supports the
decision as reasonable in the circumstances. It is not enough to show
that subsequent events show that the operation need never have been
performed, if at the time the decision to operate was taken, it was
reasonable, in the sense that a responsible body of medical opinion
would have accepted it as proper. Lord Scarman who recorded the
leading speech with which other four Lords agreed quoted the
following words of Lord President (Clyde) in Hunter v. Hanley 1955
SLT 213 at 217, observing that the words cannot be bettered \026 "In the
realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely
because his conclusion differs from that of other professional men\005The
true test for establishing negligence in diagnosis or treatment on the
part of a doctor is whether he has been proved to be guilty of such
failure as no doctor of ordinary skill would be guilty of if acting with
ordinary care\005". Lord Scarman added \026 "a doctor who professes to
exercise a special skill must exercise the ordinary skill of his speciality.
Differences of opinion and practice exist, and will always exist, in the
medical as in other professions. There is seldom any one answer
exclusive of all others to problems of professional judgment. A court
may prefer one body of opinion to the other, but that is no basis for a
conclusion of negligence." His Lordship further added "that a judge’s
’preference’ for one body of distinguished professional opinion to
another also professionally distinguished is not sufficient to establish
negligence in a practitioner whose actions have received the seal of
approval of those whose opinions, truthfully expressed, honestly held,
were not preferred."

The classical statement of law in Bolam’s case has been widely

accepted as decisive of the standard of care required both of
professional men generally and medical practitioners in particular. It
has been invariably cited with approval before Courts in India and
applied to as touchstone to test the pleas of medical negligence. In
tort, it is enough for the defendant to show that the standard of care
and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The
fact that a defendant charged with negligence acted in accord with the
general and approved practice is enough to clear him of the charge.
Two things are pertinent to be noted. Firstly, the standard of care,
when assessing the practice as adopted, is judged in the light of
knowledge available at the time (of the incident), and not at the date
of trial. Secondly, when the charge of negligence arises out of failure
to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time on which it
is suggested as should have been used.

A mere deviation from normal professional practice is not

necessarily evidence of negligence. Let it also be noted that a mere
accident is not evidence of negligence. So also an error of judgment
on the part of a professional is not negligence per se. Higher the
acuteness in emergency and higher the complication, more are the
chances of error of judgment. At times, the professional is confronted
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with making a choice between the devil and the deep sea and he has
to choose the lesser evil. The medical professional is often called upon
to adopt a procedure which involves higher element of risk, but which
he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to follow, would
depend on the facts and circumstances of a given case. The usual
practice prevalent nowadays is to obtain the consent of the patient or
of the person incharge of the patient if the patient is not be in a
position to give consent before adopting a given procedure. So long
as it can be found that the procedure which was in fact adopted was
one which was acceptable to medical science as on that date, the
medical practitioner cannot be held negligent merely because he chose
to follow one procedure and not another and the result was a failure.

No sensible professional would intentionally commit an act or

omission which would result in loss or injury to the patient as the
professional reputation of the person is at stake. A single failure may
cost him dear in his career. Even in civil jurisdiction, the rule of res
ipsa loquitur is not of universal application and has to be applied with
extreme care and caution to the cases of professional negligence and
in particular that of the doctors. Else it would be counter productive.
Simply because a patient has not favourably responded to a treatment
given by a physician or a surgery has failed, the doctor cannot be held
liable per se by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence which in reality belongs to

the law of torts. Inference as to negligence may be drawn from
proved circumstances by applying the rule if the cause of the accident
is unknown and no reasonable explanation as to the cause is coming
forth from the defendant. In criminal proceedings, the burden of
proving negligence as an essential ingredient of the offence lies on the
prosecution. Such ingredient cannot be said to have been proved or
made out by resorting to the said rule (See Syad Kabar v. State of
Karnataka (1980) 1 SCC 30). Incidentally, it may be noted that in
Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court
has observed that there may be a case where the proved facts would
themselves speak of sharing of common intention and while making
such observation one of the learned judges constituting the Bench has
in his concurring opinion merely stated "res ipsa loquitur’. Nowhere it
has been stated that the rule has applicability in a criminal case and an
inference as to an essential ingredient of an offence can be found
proved by resorting to the said rule. In our opinion, a case under
Section 304A IPC cannot be decided solely by applying the rule of res
ipsa loquitur.

A medical practitioner faced with an emergency ordinarily tries

his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to clearly make out
a case of negligence before a medical practitioner is charged with or
proceeded against criminally. A surgeon with shaky hands under fear
of legal action cannot perform a successful operation and a quivering
physician cannot administer the end-dose of medicine to his patient.

If the hands be trembling with the dangling fear of facing a

criminal prosecution in the event of failure for whatever reason\027
whether attributable to himself or not, neither a surgeon can
successfully wield his life-saving scalper to perform an essential
surgery, nor can a physician successfully administer the life-saving
dose of medicine. Discretion being better part of valour, a medical
professional would feel better advised to leave a terminal patient to his
own fate in the case of emergency where the chance of success may
be 10% (or so), rather than taking the risk of making a last ditch
effort towards saving the subject and facing a criminal prosecution if
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his effort fails. Such timidity forced upon a doctor would be a
disservice to the society.

The purpose of holding a professional liable for his act or

omission, if negligent, is to make the life safer and to eliminate the
possibility of recurrence of negligence in future. Human body and
medical science \027 both are too complex to be easily understood. To
hold in favour of existence of negligence, associated with the action or
inaction of a medical professional, requires an in-depth understanding
of the working of a professional as also the nature of the job and of
errors committed by chance, which do not necessarily involve the
element of culpability.

The subject of negligence in the context of medical profession

necessarily calls for treatment with a difference. Several relevant
considerations in this regard are found mentioned by Alan Merry and
Alexander McCall Smith in their work "Errors, Medicine and the Law"
(Cambridge University Press, 2001). There is a marked tendency to
look for a human actor to blame for an untoward event \026 a tendency
which is closely linked with the desire to punish. Things have gone
wrong and, therefore, somebody must be found to answer for it. To
draw a distinction between the blameworthy and the blameless, the
notion of mens rea has to be elaborately understood. An empirical
study would reveal that the background to a mishap is frequently far
more complex than may generally be assumed. It can be
demonstrated that actual blame for the outcome has to be attributed
with great caution. For a medical accident or failure, the responsibility
may lie with the medical practitioner and equally it may not. The
inadequacies of the system, the specific circumstances of the case, the
nature of human psychology itself and sheer chance may have
combined to produce a result in which the doctor’s contribution is
either relatively or completely blameless. Human body and its working
is nothing less than a highly complex machine. Coupled with the
complexities of medical science, the scope for misimpressions,
misgivings and misplaced allegations against the operator i.e. the
doctor, cannot be ruled out. One may have notions of best or ideal
practice which are different from the reality of how medical practice is
carried on or how in real life the doctor functions. The factors of
pressing need and limited resources cannot be ruled out from
consideration. Dealing with a case of medical negligence needs a
deeper understanding of the practical side of medicine.

At least three weighty considerations can be pointed out which

any forum trying the issue of medical negligence in any jurisdiction
must keep in mind. These are: (i) that legal and disciplinary
procedures should be properly founded on firm, moral and scientific
grounds; (ii) that patients will be better served if the real causes of
harm are properly identified and appropriately acted upon; and (iii)
that many incidents involve a contribution from more than one person,
and the tendency is to blame the last identifiable element in the chain
of causation \026 the person holding the ’smoking gun’.

Accident during the course of medical or surgical treatment has

a wider meaning. Ordinarily, an accident means an unintended and
unforeseen injurious occurrence; something that does not occur in the
usual course of events or that could not be reasonably anticipated
(See, Black’s Law Dictionary, 7th Edition). Care has to be taken to see
that the result of an accident which is exculpatory may not persuade
the human mind to confuse it with the consequence of negligence.

Medical Professionals in Criminal Law

The criminal law has invariably placed the medical professionals
on a pedestal different from ordinary mortals. The Indian Penal Code
enacted as far back as in the year 1860 sets out a few vocal examples.
Section 88 in the Chapter on General Exceptions provides exemption
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for acts not intended to cause death, done by consent in good faith for
person’s benefit. Section 92 provides for exemption for acts done in
good faith for the benefit of a person without his consent though the
acts cause harm to a person and that person has not consented to
suffer such harm. There are four exceptions listed in the Section
which is not necessary in this context to deal with. Section 93 saves
from criminality certain communications made in good faith. To these
provisions are appended the following illustrations:-

Section 88
A, a surgeon, knowing that a particular operation
is likely to cause the death of Z, who suffers under
a painful complaint, but not intending to cause Z’s
death and intending in good faith, Z’s benefit,
performs that operation on Z, with Z’s consent. A
has committed no offence.

Section 92
Z is thrown from his horse, and is insensible. A, a
surgeon, finds that Z requires to be trepanned. A,
not intending Z’s death, but in good faith, for Z’s
benefit, performs the trepan before Z recovers his
power of judging for himself. A has committed no
offence.

A, a surgeon, sees a child suffer an accident

which is likely to prove fatal unless an operation be
immediately performed. There is no time to apply
to the child’s guardian. A performs the operation in
spite of the entreaties of the child, intending, in
good faith, the child’s benefit. A has committed
no offence.

Section 93
A, a surgeon, in good faith, communicates to a
patient his opinion that he cannot live. The patient
dies in consequence of the shock. A has committed
no offence, though he knew it to be likely that the
communication might cause the patient’s death.

It is interesting to note what Lord Macaulay had himself to say

about Indian Penal Code. We are inclined to quote a few excerpts from
his speech to the extent relevant for our purpose from "Speeches and
Poems with the Report and Notes on the Indian Penal Code" by Lord
Macaulay (Houghton, Mifflin and Company, published in 1874).

"Under the provisions of our Code, this case would

be very differently dealt with according to
circumstances. If A. kills Z. by administering
abortives to her, with the knowledge that those
abortives are likely to cause her death, he is guilty
of voluntary culpable homicide, which will be
voluntary culpable homicide by consent, if Z.
agreed to run the risk, and murder if Z. did not so
agree. If A causes miscarriage to Z., not intending
to cause Z.’s death, nor thinking it likely that he
shall cause Z.’s death, but so rashly or negligently
as to cause her death, A. is guilty of culpable
homicide not voluntary, and will be liable to the
punishment provided for the causing of
miscarriage, increased by imprisonment for a term
not exceeding two years. Lastly, if A took such
precautions that there was no reasonable
probability that Z.’s death would be caused, and if
the medicine were rendered deadly by some
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accident which no human sagacity could have
foreseen, or by some peculiarity in Z.’s constitution
such as there was no ground whatever to expect,
A. will be liable to no punishment whatever on
account of her death, but will of course be liable to
the punishment provided for causing miscarriage.

It may be proper for us to offer some arguments in

defence of this part of the Code.

It will be admitted that when an act is in itself

innocent, to punish the person who does it because
bad consequences, which no human wisdom could
have foreseen, have followed from it, would be in
the highest degree barbarous and absurd." (P.419)

"To punish as a murderer every man who, while

committing a heinous offence, causes death by
pure misadventure, is a course which evidently
adds nothing to the security of human life. No man
can so conduct himself as to make it absolutely
certain that he shall not be so unfortunate as to
cause the death of a fellow-creature. The utmost
that he can do is to abstain from every thing which
is at all likely to cause death. No fear of
punishment can make him do more than this; and
therefore, to punish a man who has done this can
add nothing to the security of human life. The only
good effect which such punishment can produce
will be to deter people from committing any of
those offences which turn into murders what are in
themselves mere accidents. It is in fact an addition
to the punishment of those offences, and it is an
addition made in the very worst way." (p.421)

"When a person engaged in the commission of an

offence causes death by rashness or negligence,
but without either intending to cause death, or
thinking it likely that he shall cause death, we
propose that he shall be liable to the punishment of
the offence which he was engaged in committing,
superadded to the ordinary punishment of
involuntary culpable homicide.

The arguments and illustrations which we have

employed for the purpose of showing that the
involuntary causing of death, without either
rashness or negligence, ought, under no
circumstances, to be punished at all, will, with
some modifications, which will readily suggest
themselves, serve to show that the involuntary
causing of death by rashness or negligence, though
always punishable, ought, under no circumstances
to be punished as murder." (P.422)

The following statement of law on criminal negligence by

reference to surgeons, doctors etc. and unskillful treatment contained
in Roscoe’s Law of Evidence (Fifteenth Edition) is classic:
"Where a person, acting as a medical man, &c.,
whether licensed or unlicensed, is so negligent in
his treatment of a patient that death results, it is
manslaughter if the negligence was so great as to
amount to a crime, and whether or not there was
such a degree of negligence is a question in each
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case for the jury. "In explaining to juries the test
which they should apply to determine whether the
negligence in the particular case amounted or did
not amount to a crime, judges have used many
epithets, such as ’culpable,’ ’criminal’, ’gross’,
’wicked’, ’clear’, ’complete.’ But whatever epithet
be used and whether an epithet be used or not, in
order to establish criminal liability the facts must
be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere
matter of compensation between subjects and
showed such disregard for the life and safety of
others as to amount to a crime against the State
and conduct deserving punishment." (p. 848-849)
xxx xxx xxx

"whether he be licensed or unlicensed, if he display

gross ignorance, or gross inattention, or gross
rashness, in his treatment, he is criminally
responsible. Where a person who, though not
educated as an accoucheur, had been in the habit
of acting as a man-midwife, and had unskilfully
treated a woman who died in childbirth, was
indicted for the murder, L. Ellenborough said that
there was no evidence of murder, but the jury
might convict of man-slaughter. "To substantiate
that charge the prisoner must have been guilty of
criminal misconduct, arising either from the
grossest ignorance or the [most?] criminal
inattention. One or other of these is necessary to
make him guilty of that criminal negligence and
misconduct which is essential to make out a case of
manslaughter." (p.849)

A review of Indian decisions on criminal negligence

We are inclined to, and we must - as duty bound, take note of
some of the relevant decisions of the Privy Council and of this Court.
We would like to preface this discussion with the law laid down by the
Privy Council in John Oni Akerele v. The King AIR 1943 PC 72. A
duly qualified medical practitioner gave to his patient the injection of
Sobita which consisted of sodium bismuth tartrate as given in the
British Pharmacopoea. However, what was administered was an
overdose of Sobita. The patient died. The doctor was accused of
manslaughter, reckless and negligent act. He was convicted. The
matter reached in appeal before the House of Lords. Their Lordships
quashed the conviction. On a review of judicial opinion and an
illuminating discussion on the points which are also relevant before us,
what their Lordships have held can be summed up as under:-

(i) That a doctor is not criminally responsible for a

patient’s death unless his negligence or
incompetence went beyond a mere matter of
compensation between subjects and showed such
disregard for life and safety of others as to amount
to a crime against the State.;

(ii) That the degree of negligence required is that it

should be gross, and that neither a jury nor a court
can transform negligence of a lesser degree into
gross negligence merely by giving it that
appellation. \005\005\005\005 There is a difference in kind
between the negligence which gives a right to
compensation and the negligence which is a crime.
(iii) It is impossible to define culpable or
criminal negligence, and it is not possible to make
the distinction between actionable negligence and
criminal negligence intelligible, except by means of
illustrations drawn from actual judicial opinion.
\005\005.. The most favourable view of the conduct of an
accused medical man has to be taken, for it would
be most fatal to the efficiency of the medical
profession if no one could administer medicine
without a halter round his neck."
(emphasis supplied)

Their Lordships refused to accept the view that criminal negligence

was proved merely because a number of persons were made gravely ill
after receiving an injection of Sobita from the appellant coupled with a
finding that a high degree of care was not exercised. Their Lordships
also refused to agree with the thought that merely because too strong
a mixture was dispensed once and a number of persons were made
gravely ill, a criminal degree of negligence was proved.

The question of degree has always been considered as relevant

to a distinction between negligence in civil law and negligence in
criminal law. In Kurban Hussein Mohamedalli Rangawalla v.
State of Maharashtra (1965) 2 SCR 622, while dealing with Section
304A of IPC, the following statement of law by Sir Lawrence Jenkins in
Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with
approval:-
"To impose criminal liability under Section 304-A,
Indian Penal Code, it is necessary that the death
should have been the direct result of a rash and
negligent act of the accused, and that act must be
the proximate and efficient cause without the
intervention of another’s negligence. It must be
the causa causans; it is not enough that it may
have been the causa sine qua non."

K.N. Wanchoo, J. (as he then was), speaking for the Court,

observed that the abovesaid view of the law has been generally
followed by High Courts in India and was the correct view to take of
the meaning of Section 304A. The same view has been reiterated in
Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904.

In Juggankhan v. The State of Madhya Pradesh (1965) 1

SCR 14, the accused, a registered Homoeopath, administered 24 drops
of stramonium and a leaf of dhatura to the patient suffering from
guinea worm. The accused had not studied the effect of such
substances being administered to a human being. The poisonous
contents of the leaf of dhatura, were not satisfactorily established by
the prosecution. This Court exonerated the accused of the charge
under Section 302 IPC. However, on a finding that stramonium and
dhatura leaves are poisonous and in no system of medicine, except
perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea
worm, the act of the accused who prescribed poisonous material
without studying their probable effect was held to be a rash and
negligent act. It would be seen that the profession of a Homoeopath
which the accused claimed to profess did not permit use of the
substance administered to the patient. The accused had no knowledge
of the effect of such substance being administered and yet he did so.
In this background, the inference of the accused being guilty of rash
and negligent act was drawn against him. In our opinion, the principle
which emerges is that a doctor who administers a medicine known to
or used in a particular branch of medical profession impliedly declares
that he has knowledge of that branch of science and if he does not, in
fact, possess that knowledge, he is prima facie acting with rashness or
negligence.
 Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole
and Anr. (1969) 1 SCR 206 was a case under Fatal Accidents Act,
1855. It does not make a reference to any other decided case. The
duties which a doctor owes to his patients came up for consideration.
The Court held that a person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for that purpose. Such a person
when consulted by a patient owes him certain duties, viz., a duty of
care in deciding whether to undertake the case, a duty of care in
deciding what treatment to be given or a duty of care in the
administration of that treatment. A breach of any of those duties
gives a right of action for negligence to the patient. The practitioner
must bring to his task a reasonable degree of skill and knowledge and
must exercise a reasonable degree of care. Neither the very highest
nor a very low degree of care and competence judged in the light of
the particular circumstances of each case is what the law requires. The
doctor no doubt has a discretion in choosing treatment which he
proposes to give to the patient and such discretion is relatively ampler
in cases of emergency. In this case, the death of patient was caused
due to shock resulting from reduction of the fracture attempted by
doctor without taking the elementary caution of giving anaesthetic to
the patient. The doctor was held guilty of negligence and liability for
damages in civil law. We hasten to add that criminal negligence or
liability under criminal law was not an issue before the Court \027as it
did not arise and hence was not considered.

In the year 1996, there are 3 reported decisions available.

Indian Medical Association v. V.P. Shantha and Ors. (1995) 6
SCC 651 is a three-Judge Bench decision. The principal issue which
arose for decision by the Court was whether a medical practitioner
renders ’service’ and can be proceeded against for ’deficiency in
service’ before a forum under the Consumer Protection Act, 1986. The
Court dealt with how a ’profession’ differs from an ’occupation’
especially in the context of performance of duties and hence the
occurrence of negligence. The Court noticed that medical professionals
do not enjoy any immunity from being sued in contract or tort (i.e. in
civil jurisdiction) on the ground of negligence. However, in the
observation made in the context of determining professional liability
as distinguished from occupational liability, the Court has referred to
authorities, in particular, Jackson & Powell and have so stated the
principles, partly quoted from the authorities :-

"In the matter of professional liability professions

differ from occupations for the reason that
professions operate in spheres where success
cannot be achieved in every case and very often
success or failure depends upon factors beyond the
professional man’s control. In devising a rational
approach to professional liability which must
provide proper protection to the consumer while
allowing for the factors mentioned above, the
approach of the Courts is to require that
professional men should possess a certain
minimum degree of competence and that they
should exercise reasonable care in the discharge of
their duties. In general, a professional man owes
to his client a duty in tort as well as in contract to
exercise reasonable care in giving advice or
performing services. (See : Jackson & Powell on
Professional Negligence, 3rd Edn., paras 1-04, 1-05,
and 1-56)."
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In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC
332 a doctor registered as medical practitioner and entitled to practice
in Homoeopathy only, prescribed an allopathic medicine to the patient.
The patient died. The doctor was held to be negligent and liable to
compensate the wife of the deceased for the death of her husband on
the ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the field of
any other system of medicine and since he trespassed into a
prohibited field and prescribed the allopathic medicine to the patient
causing the death, his conduct amounted to negligence per se
actionable in civil law. Dr. Laxman Balkrishna Joshi’s case (supra)
was followed. Vide para 16, the test for determining whether there
was negligence on the part of a medical practitioner as laid down in
Bolam’s case (supra) was cited and approved.

In Achutrao Haribhau Khodwa and Ors. v. State of

Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in
the very nature of medical profession, skills differs from doctor to
doctor and more than one alternative course of treatment are
available, all admissible. Negligence cannot be attributed to a doctor
so long as he is performing his duties to the best of his ability and with
due care and caution. Merely because the doctor chooses one course
of action in preference to the other one available, he would not be
liable if the course of action chosen by him was acceptable to the
medical profession. It was a case where a mop was left inside the lady
patient’s abdomen during an operation. Peritonitis developed which
led to a second surgery being performed on her, but she could not
survive. Liability for negligence was fastened on the surgeon because
no valid explanation was forthcoming for the mop having been left
inside the abdomen of the lady. The doctrine of res ipsa loquitur was
held applicable ’in a case like this’.

M/s Spring Meadows Hospital and Anr. v. Harjol

Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is
again a case of liability for negligence by a medical professional in civil
law. It was held that an error of judgment is not necessarily
negligence. The Court referred to the decision in Whitehouse &
Jorden, [1981] 1 ALL ER 267, and cited with approval the following
statement of law contained in the opinion of Lord Fraser determining
when an error of judgment can be termed as negligence:-

"The true position is that an error of

judgment may, or may not, be negligent, it
depends on the nature of the error. If it is
one that would not have been made by a
reasonably competent professional man
professing to have the standard and type of
skill that the defendant holds himself out as
having, and acting with ordinary care, then it
is negligence. If, on the other hand, it is an
error that such a man, acting with ordinary
care, might have made, then it is not
negligence."

In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC

182 also Bolam’s test has been approved. This case too refers to
liability for compensation under civil law for failure of sterilisation
operation performed by a surgeon. We are not dealing with that
situation in the case before us and, therefore, leave it to be dealt
within an appropriate case.

Before we embark upon summing up our conclusions on the

several issues of law which we have dealt with hereinabove, we are
inclined to quote some of the conclusions arrived at by the learned
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authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at
the end of the book in the chapter titled \026 ’Conclusion’) highlighting
the link between moral fault, blame and justice in reference to medical
profession and negligence. These are of significance and relevant to
the issues before us. Hence we quote :-

(i) The social efficacy of blame and related sanctions in particular

cases of deliberate wrongdoings may be a matter of dispute, but
their necessity \026 in principle \026 from a moral point of view, has
been accepted. Distasteful as punishment may be, the social,
and possibly moral, need to punish people for wrongdoing,
occasionally in a severe fashion, cannot be escaped. A society
in which blame is overemphasized may become paralysed. This
is not only because such a society will inevitably be backward-
looking, but also because fear of blame inhibits the uncluttered
exercise of judgment in relations between persons. If we are
constantly concerned about whether our actions will be the
subject of complaint, and that such complaint is likely to lead to
legal action or disciplinary proceedings, a relationship of
suspicious formality between persons is inevitable. (ibid, pp.
242-243)

(ii) Culpability may attach to the consequence of an error in

circumstances where substandard antecedent conduct has been
deliberate, and has contributed to the generation of the error or
to its outcome. In case of errors, the only failure is a failure
defined in terms of the normative standard of what should have
been done. There is a tendency to confuse the reasonable
person with the error-free person. While nobody can avoid
errors on the basis of simply choosing not to make them, people
can choose not to commit violations. A violation is culpable.
(ibid, p. 245).

(iii) Before the court faced with deciding the cases of professional
negligence there are two sets of interests which are at stake :
the interests of the plaintiff and the interests of the defendant.
A correct balance of these two sets of interests should ensure
that tort liability is restricted to those cases where there is a
real failure to behave as a reasonably competent practitioner
would have behaved. An inappropriate raising of the standard of
care threatens this balance. (ibid, p.246). A consequence of
encouraging litigation for loss is to persuade the public that all
loss encountered in a medical context is the result of the failure
of somebody in the system to provide the level of care to which
the patient is entitled. The effect of this on the doctor-patient
relationship is distorting and will not be to the benefit of the
patient in the long run. It is also unjustified to impose on those
engaged in medical treatment an undue degree of additional
stress and anxiety in the conduct of their profession. Equally, it
would be wrong to impose such stress and anxiety on any other
person performing a demanding function in society. (ibid,
p.247). While expectations from the professionals must be
realistic and the expected standards attainable, this implies
recognition of the nature of ordinary human error and human
limitations in the performance of complex tasks. (ibid, p. 247).

(iv) Conviction for any substantial criminal offence requires that the
accused person should have acted with a morally blameworthy
state of mind. Recklessness and deliberate wrongdoing, are
morally blameworthy, but any conduct falling short of that
should not be the subject of criminal liability. Common-law
systems have traditionally only made negligence the subject of
criminal sanction when the level of negligence has been high \026 a
standard traditionally described as gross negligence. In fact,
negligence at that level is likely to be indistinguishable from
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recklessness. (ibid, p.248).

(v) Blame is a powerful weapon. Its inappropriate use distorts

tolerant and constructive relations between people.
Distinguishing between (a) accidents which are life’s misfortune
for which nobody is morally responsible, (b) wrongs
amounting to culpable conduct and constituting grounds for
compensation, and (c) those (i.e. wrongs) calling for
punishment on account of being gross or of a very high degree
requires and calls for careful, morally sensitive and scientifically
informed analysis; else there would be injustice to the larger
interest of the society. (ibid, p. 248).

Indiscriminate prosecution of medical professionals for criminal

negligence is counter-productive and does no service or good to the
society.

Conclusions summed up
We sum up our conclusions as under:-

(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 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 components of negligence are three: ’duty’,
’breach’ and ’resulting damage’.

(2) Negligence in the context of medical profession necessarily calls

for a treatment with a difference. To infer rashness or
negligence on the part of a professional, in particular a doctor,
additional considerations apply. A case of occupational
negligence is different from one of professional negligence. A
simple lack of care, an error of judgment or an accident, is not
proof of negligence on the part of a medical professional. So
long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence
merely because a better alternative course or method of
treatment was also available or simply because a more skilled
doctor would not have chosen to follow or resort to that practice
or 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 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 in the light of
knowledge available at the time of the incident, and not at the
date of trial. Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that
particular time (that is, the time of the incident) at which it is
suggested it should have been used.

(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 standard to be applied for judging, whether
the person charged has been negligent or not, would be that of
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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 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 indictment of negligence.

(4) The test for determining medical negligence as laid down in

Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its
applicability in India.

(5) The jurisprudential concept of negligence differs in civil and

criminal law. What may be negligence in civil law may not
necessarily be negligence in criminal law. For negligence to
amount to an offence, the element of mens rea must be shown
to exist. For an act to amount to criminal negligence, the degree
of negligence should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a higher degree
may provide a ground for action in civil law but cannot form the
basis for prosecution.

(6) The word ’gross’ has not been used in Section 304A of IPC, yet it
is settled that in criminal law negligence or recklessness, to be
so held, must be of such a high degree as to be ’gross’. The
expression ’rash or negligent act’ as occurring in Section 304A
of the IPC has to be read as qualified by the word ’grossly’.

(7) To prosecute a medical professional for negligence under

criminal law it must be shown that the accused did something or
failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses
and prudence would have done or failed to do. The hazard
taken by the accused doctor should be of such a nature that the
injury which resulted was most likely imminent.

(8) Res ipsa loquitur is only a rule of evidence and operates in the
domain of civil law specially in cases of torts and helps in
determining the onus of proof in actions relating to negligence. It
cannot be pressed in service for determining per se the liability
for negligence within the domain of criminal law. Res ipsa loquitur
has, if at all, a limited application in trial on a charge of criminal
negligence.

In view of the principles laid down hereinabove and the

preceding discussion, we agree with the principles of law laid down in
Dr. Suresh Gupta’s case (2004) 6 SCC 422 and re-affirm the same.
Ex abundanti cautela, we clarify that what we are affirming are the
legal principles laid down and the law as stated in Dr. Suresh Gupta’s
case. We may not be understood as having expressed any opinion on
the question whether on the facts of that case the accused could or
could not have been held guilty of criminal negligence as that question
is not before us. We also approve of the passage from Errors,
Medicine and the Law by Alan Merry and Alexander McCall Smith which
has been cited with approval in Dr. Suresh Gupta’s case (noted vide
para 27 of the report).

Guidelines \026 re: prosecuting medical professionals

As we have noticed hereinabove that the cases of doctors
(surgeons and physicians) being subjected to criminal prosecution are
on an increase. Sometimes such prosecutions are filed by private
complainants and sometimes by police on an FIR being lodged and
cognizance taken. The investigating officer and the private
complainant cannot always be supposed to have knowledge of
medical science so as to determine whether the act of the accused
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medical professional amounts to rash or negligent act within the
domain of criminal law under Section 304-A of IPC. The criminal
process once initiated subjects the medical professional to serious
embarrassment and sometimes harassment. He has to seek bail to
escape arrest, which may or may not be granted to him. At the end
he may be exonerated by acquittal or discharge but the loss which he
has suffered in his reputation cannot be compensated by any
standards.

We may not be understood as holding that doctors can never be

prosecuted for an offence of which rashness or negligence is an
essential ingredient. All that we are doing is to emphasize the need
for care and caution in the interest of society; for, the service which
the medical profession renders to human beings is probably the
noblest of all, and hence there is a need for protecting doctors from
frivolous or unjust prosecutions. Many a complainant prefers recourse
to criminal process as a tool for pressurizing the medical professional
for extracting uncalled for or unjust compensation. Such malicious
proceedings have to be guarded against.

Statutory Rules or Executive Instructions incorporating certain

guidelines need to be framed and issued by the Government of India
and/or the State Governments in consultation with the Medical Council
of India. So long as it is not done, we propose to lay down certain
guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence
is an ingredient. A private complaint may not be entertained unless
the complainant has produced prima facie evidence before the Court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the
accused doctor. The investigating officer should, before proceeding
against the doctor accused of rash or negligent act or omission, obtain
an independent and competent medical opinion preferably from a
doctor in government service qualified in that branch of medical
practice who can normally be expected to give an impartial and
unbiased opinion applying Bolam’s test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may not be
arrested in a routine manner (simply because a charge has been
levelled against him). Unless his arrest is necessary for furthering the
investigation or for collecting evidence or unless the investigation
officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the
arrest may be withheld.

Case at hand
Reverting back to the facts of the case before us, we are
satisfied that all the averments made in the complaint, even if held to
be proved, do not make out a case of criminal rashness or negligence
on the part of the accused appellant. It is not the case of the
complainant that the accused-appellant was not a doctor qualified to
treat the patient whom he agreed to treat. It is a case of non-
availability of oxygen cylinder either because of the hospital having
failed to keep available a gas cylinder or because of the gas cylinder
being found empty. Then, probably the hospital may be liable in civil
law (or may not be \027 we express no opinion thereon) but the accused
appellant cannot be proceeded against under Section 304A IPC on the
parameters of Bolam’s test.
Result

The appeals are allowed. The prosecution of the accused

appellant under Section 304A/34 IPC is quashed.

All the interlocutory applications be treated as disposed of.

Page 21

21
 S.F. No. 1726
Supreme Court of California,Department One

Kimmell v. Skelly
•
130 Cal. 555 (Cal. 1900) 62 P. 1067
Decided Nov 28, 1900

S.F. No. 1726. of the contract which should be rejected as

contrary to the intention of the parties. (Civ. Code,
556 November 28, 1900. *556
secs. 1640, 1651, 1653; Jackson v. Puget Sound
APPEAL from a judgment of the Superior Court Lumber Co., 123 Cal. 97, 100, 101; ard v. Yorba,
of the City and County of San Francisco and from 123 Cal. 447; Learned v. McCoy, 4 Ind. App. 238.)
an order denying a new trial. Edward A. Belcher, There is no consideration for plaintiff's claim, no
Judge. purchaser having been found, and this
affirmatively appears. (Civ. Code, sec. 1639;
The facts are stated in the opinion of the court.
Brickell v. Batchelder, 62 Cal. 639.) This is an
Mullany, Grant Cushing, and O.K. Cushing, for action to recover a penalty from defendant for
Appellant. doing the lawful act of trading off her own
property, after the exclusive agency really
The plaintiffs were employed as brokers to sell the
contracted for had expired, and such an action
property, and they must have found a purchaser
should fail. (3 Parsons on Contracts, 157.)
ready and willing to purchase to entitle them to
1 38 Am. Rep. 441.
their commission. (Gonzales v. Broad, 57 Cal.
224; Middelton v. Findla, 25 Cal. 76; Phelps v. 2 66 Am. St. Rep. 49.
Prusch, 83 Cal. 626; Smith v. Schiele, 93 Cal. 144;
Gunn v. Bank of California, 99 Cal. 352; Oullahan Lent Humphrey, for Respondent.
v. Baldwin, 100 Cal. 660; Martin v. Ede, 103 Cal.
The terms of the contract must govern this case,
161; Garberino v. Roberts, 109 Cal. 125; Sibbald
and the finding of a purchaser is not essential
v. Bethlehem Iron Co., 83 N.Y. 378, 383.1) On the
under its terms. (Crane v. McCormick, 92 Cal.
whole case, it appears that it was the intention of
176, 181, 182; Maze v. Gordon, 96 Cal. 61, 66, 67;
557 both parties to limit the contract to thirty *557
Rucker v. Hall, 105 Cal. 425, 426, 428.) The
days. The contract shall be construed against the
defendant, not being illiterate, was bound to know
brokers, who furnished their own studiously the contents of the instrument she signed, and was
prepared and printed form. (Berliner v. Travelers' not entitled to rely upon any representation as to
Ins. Co., 121 Cal. 458, 466.2) And it being subject its contents. (Hawkins v. Howkins, 50 Cal. 558;
to withdrawal (Brown v. Pforr, 38 Cal. 550), the Crane v. McCormick, supra; Commissioners etc.
terms "while this contract is in force" should be of San Jose v. Younger, 29 Cal. 172; Finlayson v.
limited to the written period of thirty days Finlayson, 17 Or. 3473; 2 Kent's Commentaries,
prescribed. Under all of the circumstances, the 484; 1 Story's Equity Jurisprudence, sec. 195 et
defendant should not be further annoyed or seq.; 8 Am. Eng. Ency. of Law, 643.)
subjected to any loss or penalty, by reason of the
3 11 Am. St. Rep. 836.
claim here asserted, which depends upon a clause

1
 Kimmell v. Skelly 130 Cal. 555 (Cal. 1900)

GAROUTTE, J. entitled to their commission; and this

circumstance alone shows that the contract was in
This action is brought by the assignee of the real
full force and effect when the sale was made.
558 estate firm of Hooker Lent, and is based upon *558
a broker's contract entered into by defendant April It is suggested by appellant that the sale by her was
10, 1897. The material parts of this contract are as in effect a withdrawal in writing of the
follows: "For and in consideration of the services employment of the brokers, and thereby put an end
to be performed by Messrs. Hooker Lent. I hereby to the contract. This contract cannot hear that
employ them as my sole and exclusive agents to 559 construction. A sale by the defendant, *559
sell for me that certain real property ............ This followed by her deed, was not the writing
employment and authority shall continue for the contemplated by the terms of the instrument. This
full period of thirty days from the date hereof and is doubly apparent, for defendant agreed by its
thereafter until withdrawn by me in writing; and I terms to pay the brokers the amount specified if
agree to pay to said Hooker Lent, in the event of she herself sold the property; again, if this deed of
the sale of said real property by them or by anyone the property to her grantee should be construed as
else, including myself, while this contract is in a withdrawal in writing of the employment of the
force, two thousand two hundred and fifty dollars brokers, it certainly could not be construed as a
as and for their compensation hereunder." Some withdrawal of their employment before the sale
weeks after the expiration of the thirty-day period was made.
specified in the instrument, but before any
It is claimed that the brokers' contract was one to
withdrawal of the employment of the brokers by
find a purchaser, and, no purchaser having been
defendant in writing had been made, defendant
found, no commissions were earned, and that for
sold the property. This action was then brought
this reason the complaint does not state a cause of
and judgment recovered for the sum of two
action. The contract in this case is not the ordinary
thousand two hundred and fifty dollars. It is
broker's contract; it is more. By its terms the
conceded that the brokers found no purchaser for
brokers were entitled to two thousand two hundred
the property, but the evidence shows and the
and fifty dollars if during the life of the instrument
findings of fact are to the effect that they spent
they found a purchaser; or if during its life
time and money in an attempt to find a purchaser.
defendant sold the property, they were likewise
As far as the merits of this litigation are entitled to the same amount. Defendant having
concerned, it is not material that the sale made by sold the property during the life of the contract,
defendant took place after the expiration of the this last provision is relied upon to support a
thirty-day period named in the contract; for the recovery, and justly so. The defendant made a
contract was in force for thirty days, and thereafter contract and had the power to make it; and there is
until a certain written notice was served on the no reason why she should be allowed to escape
brokers revoking it, and this notice had not been from its binding force, unless equitable grounds
served when the sale was made. For this reason exist which excuse her. The parties to a brokers'
the contract was in full force and effect at that contract are at liberty to make the compensation of
time. It had exactly the same binding effect upon the broker depend upon any lawful conditions they
defendant at the time of the sale, as it would have see fit to place therein. The single question is,
had if the sale had been made within the first thirty What does the contract provide?
days of its life. If the brokers had found a
It is insisted that there is no consideration to
purchaser at any time prior to the sale made by
support the contract, but with this contention we
defendant, then clearly they would have been
cannot agree. Defendant employed the brokers to

2
 Kimmell v. Skelly 130 Cal. 555 (Cal. 1900)

find a purchaser for her real estate, and, in entirely upon his contract with the owner of the
consideration of the services to be performed, she land." In Maze v. Gordon, 96 Cal. 61, the court
agreed to pay them two thousand two hundred and said: "It was not essential to make out plaintiff's
fifty dollars when they found a purchaser. She also case that he should have found a purchaser. By the
further agreed to pay them the same amount in terms of the employment commissions become
consideration of their services if she herself sold due `in the event of withdrawing the sale of said
the property. The consideration for her promise to property during the time.' The claim to
pay the money if the sale was made by her, was compensation under this provision of the contract
the performance of services by the brokers in is not, as respondent suggests, damages for a
seeking a purchaser. Their compensation for these breach of the contract in withdrawing the land
services was the amount of money made payable from sale. This Hamilton had a right to do, and in
560 by the instrument, and payable *560 when the land such event he became indebted to plaintiff for his
was sold by her, or some one other than the commissions." The same question arose in Rucker
brokers. This is a fair reading of its terms, and the v. Hall, 105 Cal. 426, and the court again
only reasonable construction which can be given 561 reiterated *561 the rule laid down in the two cases
it. It was proven by the evidence, and found as a cited. The question here presented is purely one of
fact by the court, that services by the brokers were construction of this particular contract, and it is
performed, and hence a consideration for her immaterial what may be the judicial construction
promise was established. given the ordinary broker's contract. The brokers
here did not agree to find a purchaser, but being
The authorities in this state hold contracts similar
employed to find one, they were agents of
to the one at bar legally enforceable. In Crane v.
defendant to that end, and were legally bound to
McCormick, 92 Cal. 176, the contract provided:
use their time and labor for the benefit of their
"And in consideration of your expenses and efforts
principal; and it is the use of this time and labor
in attracting settlers to the county, it is agreed that
which forms the consideration to support her
in event of the withdrawal of said property from
promise to pay them the compensation mentioned
sale, or in event of sale through any means during
in the agreement.
the continuance of this power, the same
commission will thus be paid as though sale had If this contract had provided in terms that, "in
been made by you." This provision was held valid, consideration of the brokers' efforts to secure a
the court saying: "Plaintiff's right of action isbased purchaser, whether or not those efforts were
solely upon the provision of the contract that if the successful, defendant would pay the amount
defendants withdrew the property from sale, or agreed upon as commissions in case she herself
effected a sale in any manner during the year, the sold the property during the life of the contract," I
same commissions would be paid as if the sale had see no possible legal objection to the validity of
been made by De Jarnett Crane. . . . . that kind of a provision and in substance that is
Defendants agreed for a valuable consideration to this contract.
pay the commissions if a sale should be effected in
There is some claim made that fraud was practiced
any way during the year; their agents, acting upon
upon defendant in securing her signature to the
the agreement, at their own expense, caused a
instrument. But we find nothing in the evidence
large number of pamphlets and circulars to be
tending to show either fraud or mistake. It may be
printed and sent to various parts of the world,
conceded that she signed the document without
advertising and offering for sale certain tracts of
reading it in its entirety, or it may be conceded
land, including the land described in the contract.
even that the brokers made misstatements to her
A real estate agent's right of recovery depends
regarding its contents; yet these things are not

3
 Kimmell v. Skelly 130 Cal. 555 (Cal. 1900)

sufficient in equity to set it aside. Defendant could

read, and she declares that she did read a part of
the writing. She was furnished with a copy of the
instrument and had ample time to examine its
contents at her leisure. No special relation of trust
or confidence existed between her and the brokers.
And even upon her own showing all that can be
said is, that she carelessly and negligently signed
the contract without reading it, and relied upon the
statements of the other party to it as to its contents,
and that party was one upon whom she had no
legal right to rely.

It is contended that some of the findings of fact are

not supported by the evidence. This may be
considered to be true as to some immaterial
findings. But as to those findings of fact necessary
to maintain the judgment we hold the evidence
562 sufficient to support them. *562

For the foregoing reasons the judgment and order

are affirmed.

Van Dyke, J., and Harrison, J., concurred.

Hearing in Bank denied.

4
 Civ. No. 4503
Court of Appeal of California, First District, Division One

Knox v. Modern Garage and Repair Shop

•
68 Cal.App. 583 (Cal. Ct. App. 1924) 229 P. 880
Decided Sep 6, 1924

Civ. No. 4503. me or by any other person while this contract is in

force, as commission for said services the sum of
584 September 6, 1924. *584
$500.00, whatever the selling price may be, and
APPEAL from a judgment of the Superior Court the same commission if sold thereafter to anyone
of the City and County of San Francisco. T. I. sent by you, or who has received information
Fitzpatrick, Judge. Reversed. directly or indirectly through your office. This
employment and authorization shall continue
The facts are stated in the opinion of the court.
irrevocably for the full period of ten days from the
Daniel H. Knox and James M. Thomas for date hereof, and shall continue thereafter until this
Appellant. authority is revoked by me by giving a ten days'
notice in writing, to be sent by registered mail or
Mervyn R. Dowd for Respondents.
delivered personally at your office. In case this
contract is canceled before my property is sold I
TYLER, P. J. — agree to reimburse you for the amount advanced
Action upon a broker's contract to recover the sum by you in advertising my property but not to
of $500 provided for therein as a commission for exceed one percent of the price asked.
the sale of a certain garage. " "(signed)
The contract reads as follows: MODERN GARAGE REPAIR SHOP, "H. H.
BEHLMER, JR.
"San Francisco, Cal., Mar. 3, 1922.
"Accepted this 3rd day of March, 1922,
"Service Investment Co.,
"(signed) SERVICE INVESTMENT CO. by
"For value received and in consideration of CHAS. H. LAND, JR."
services to be performed by you, I hereby employ
and authorize you as my agent to sell for me my The complaint in substance alleges defendants to
585 garage business known as Modern *585 Garage be partners doing business under the name of
located at 740 Valencia. Lease 4 1/2 years. Rent "Modern Garage and Repair Shop," and charges
per month $225. Price asked $6,500.00 Cash or that such defendants, after the execution of the
terms — cash. contract with the Service Investment Co. and
while the same was in full force and effect,
"In consideration of your offering my property for themselves sold and transferred the said garage
sale and listing same on your records I agree to business to certain purchasers, and that by reason
pay you at your office at San Francisco, Calif., in thereof the commission provided for immediately
the event of a sale, transfer or exchange of said became due and payable to said Service
property, or any part thereof, either by you or by Investment Co. Then follows an allegation of the

1
 Knox v. Modern Garage and Repair Shop 68 Cal.App. 583 (Cal. Ct. App. 1924)

assignment by said company of all its rights under under the impression that the duration of the same
the contract to plaintiff, and a prayer for the was limited to ten days. There is also evidence on
amount of the commission. the part of the owner who signed the contract that
he did not read it and knew nothing of its provision
Defendants, answering, admit entering into a
relating to the manner provided therein for the
contract for the sale of said business, but allege
termination thereof. On this subject, however,
that the same was limited to a period of ten days,
there is a sharp conflict in the testimony. There is
and that plaintiff's assignor failed within said time
also evidence to show that plaintiff's assignor did
to produce a purchaser able, ready, and willing to
make efforts with defendants' knowledge to sell
purchase, and that such contract was thereafter
the business after the ten-day period. As already
terminated and canceled by consent, and that
pointed out, there is no evidence to show that there
586 plaintiff's *586 assignor thereafter made no further
was ever any mutual agreement to terminate the
attempt to carry out the contract, whereupon
contract. Defendants themselves testified that
defendants sold the business themselves.
plaintiff's assignor never
The trial court found that defendants orally 587 said anything indicating any such intention. *587
canceled and rescinded the contract, and that
Respondents' contention in support of the
plaintiff's assignor abandoned said contract within
judgment that a contract may be mutually
two or three days after March 13, 1922 (being ten
abandoned by the parties at any stage of its
days after the making of the contract), and made
performance, and each of the parties released from
no further attempt to sell said business, but agreed
any further obligation on account thereof, and that
to said cancellation. Judgment was accordingly
this result may be accomplished by parol, is not
rendered in favor of the defendants. A motion for
therefore available to them, it being without
a new trial was made and denied, and plaintiff
foundation in the record. No such question can
appeals.
here arise. There never was any consent to the
It is appellant's contention that there is no termination of the agreement so far as the record
evidence in the record to sustain the finding that shows.
the contract was rescinded by the consent of the
This is an action upon the contract. [2] In such an
parties, and that respondents, having failed to
action a party cannot be heard to say that he had
revoke the contract by writing in the manner
not read the same and did not know the contents
provided for therein, the same was still in force
thereof. [3] Where a party to a written contract
and effect when the sale was made by
wishes to avoid liability thereon on the ground that
respondents, and hence plaintiff as assignee is
he did not know its contents, the question, in the
entitled to receive the commission therein agreed
absence of misrepresentation, fraud, undue
to be paid.
influence, and the like, turns on whether he was
The appeal is taken by the alternative method. [1] guilty of negligence in signing without such
Respondents have not referred us to any testimony knowledge. When he is negligent in not informing
in the record to sustain the finding that the parties himself of the contents, and signs or accepts the
by oral agreement rescinded the contract. agreement with full opportunity of knowing the
However, we have read the record carefully and true facts, he cannot avoid liability on the ground
we find no evidence to support such a finding. On that he was mistaken concerning such terms in the
the contrary, the evidence shows conclusively that absence of fraud or misrepresentation.
plaintiff's assignor did nothing of the sort. There is
evidence to show that the owners of the garage did
not have a copy of the contract, and that they were

2
 Knox v. Modern Garage and Repair Shop 68 Cal.App. 583 (Cal. Ct. App. 1924)

[4] The action being upon the contract, so far as 130 Cal. 555 [ 62 P. 1067].) Defendants made
the merits are concerned, it is not material that their contract and are bound by the terms thereof,
plaintiff's assignor failed to make a sale. The which they should have known; and there is no
contract by its provisions was to remain in full evidence in the record to show there was any fraud
force and effect for the period of ten days and or mistake in entering into the same.
thereafter until revoked by a ten days' notice in
Judgment reversed.
writing. No notice of termination was ever given.
The contract, therefore, was in full force and effect 588 Knight, J., and St. Sure, J., concurred. *588
at the time the sale was made. ( Kimmel v. Skelly,

3
 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3541 OF 2002

Martin F. D’Souza .. Appellant

-versus-

Mohd. Ishfaq .. Respondent

JUDGMENT

MARKANDEY KATJU, J.

1. This appeal against the judgment of the National Consumer Disputes

Redressal Commission, New Delhi dated 22.3.2002 has been filed under Section 23
of the Consumer Protection Act, 1986.
2. Heard learned counsel for the parties and perused the record.
3. The brief facts of the case are narrated below :
4. In March 1991, the respondent who was suffering from chronic renal
failure was referred by the Director, Health Services to the Nanavati Hospital,
Mumbai for the purpose of a kidney transplant.
5. On or about 24.4.1991, the respondent reached Nanavati Hospital,
Bombay and was under the treatment of the appellant Doctor. At that stage, the
respondent was undergoing haemodialysis twice a week on account of chronic renal
failure. Investigations were underway to find a suitable donor. The respondent
wanted to be operated by Dr. Sonawala alone who was out of India from 1.6.1991
to 1.7.1991.
6. On 20.5.1991, the respondent approached the appellant Doctor. At the
time, the respondent, who was suffering from high fever, did not want to be
admitted to the Hospital despite the advice of the appellant. Hence, a broad
spectrum antibiotic was prescribed to him.
7. From 20.5.1991 to 29.5.1991, the respondent attended the Haemodialysis
Unit at Nanavati Hospital on three occasions. At that time, his fever remained
between 101°-104°F. The appellant constantly requested the complainant to get
admitted to hospital but the respondent refused.
8. On 29.5.1991 the respondent who had high fever of 104°F finally agreed
to get admitted to hospital due to his serious condition.
9. On 30.5.1991 the respondent was investigated for renal package. The
medical report showed high creatinine 13 mg., blood urea 180 mg. The
Haemoglobin of the respondent was 4.3%. The following chart indicates the results
of the study in comparison to the normal range :-

Normal Range

S. Creatinine 13.0 mgs. % 0.7 – 1.5 mgs. %

Blood Urea 180 mgs. % 10-50 mgs. %
Haemoglobin 4.3 gms. % 11.5-13.5 gms. %

10. On 30.5.1991, the respondent was investigated for typhoid fever, which
was negative. He was also investigated for ESR, which was expectedly high in view
of renal failure and anemia infection. Urine analysis was also carried out which
showed the presence of bacteria.
11. On 3.6.1991, the reports of the urine culture and sensitivity were
received. The report showed severe urinary tract infection due to Klebsiella species
(1 lac/ml.). The report also showed that the infection could be treated by Amikacin
and Methenamine Mandelate and that the infection was resistant to other
antibiotics. Methnamine Mandelate cannot be used in patients suffering from renal
failure.
12. On 4.6.1991, the blood culture report of the respondent was received,
which showed a serious infection of the blood stream (staphylococcus species).
13. On 5.6.1991, Amikacin injection was administered to the respondent for
three days (from 5 th to 7th June, 1991), since the urinary infection of the respondent was
sensitive to Amikacin. Cap. Augmentin (375 mg.) was administered three timesa day
for the blood infection and the respondent was transfused one unit of blood during
dialysis. Consequent upon the treatment, the temperature of the respondentrapidly
subsided.
14. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney
transplant even though the respondent had advised him that in view of his blood
and urine infection no transplant could take place for six weeks.
15. On 8.6.1991, the respondent, despite the appellant’s advice, got himself
discharged from Nanavati Hospital. Since the respondent was suffering from blood
and urinary infection and had refused to come for haemodialysis on alternate days,
the appellant suggested Injection Amikacin (500 mg.) twice a day. Certain other
drugs were also specified to be taken under the supervision of the appellant when
he visited the Dialysis Unit.
16. On 11.6.1991, the respondent attended the Haemodialysis Unit and
complained to the appellant that he had slight tinnitus (ringing in the ear). The
appellant has alleged that he immediately told the respondent to stop taking the
Amikacin and Augmentin and scored out the treatment on the discharge card.
However, despite express instructions from the appellant, the respondent continued
to take Amikacin till 17.6.1991. Thereafter, the appellant was not under the
treatment of the appellant.
17. On 14.6.1991, 18.6.1991 and 20.6.1991 the respondent received
haemodialysis at Nanavati Hospital and allegedly did not complain of deafness
during this period.
18. On 25.6.1991, the respondent, on his own accord, was admitted toPrince
Aly Khan Hospital, where he was also treated with antibiotics. The complainant
allegedly did not complain of deafness during this period and conversed with
doctors normally, as is evident from their evidence.
19. On 30.7.1991, the respondent was operated upon for transplant after he
had ceased to be under the treatment of the appellant. On 13.8.1991, the respondent
was discharged from Prince Aly Khan Hospital after his transplant. The respondent
returned to Delhi on 14.8.1991, after discharge.
20. On 7.7.1992, the respondent filed a complaint before the National
Consumer Disputes Redressal Commission, New Delhi (being Original Petition
No.178 of 1992) claiming compensation of an amount of Rs.12,00,000/- as his
hearing had been affected. The appellant filed his reply stating, inter alia, that there
was no material brought on record by the respondent to show any co- relationship
between the drugs prescribed and the state of his health. Rejoinder was filed by the
respondent.
21. The National Consumer Disputes Redressal Commission (hereinafter
referred to as `the Commission’) passed an order on 6.10.1993 directing the
nomination of an expert from the All India Institute of Medical Sciences, New Delhi
(AIIMS) to examine the complaint and give an opinion. This was done in order to
get an unbiased and neutral opinion.
22. AIIMS nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the
All India Institute of Medical Sciences was submitted before the Commission, after
examining the respondent. Dr. Ghosh was of the opinion that the drug Amikacin
was administered by the appellant as a life saving measure and was rightly used. It
is submitted by the appellant that the said report further makes it clear that there
has been no negligence on the part of the appellant.
23. Evidence was thereupon led before the Commission. Two affidavits by
way of evidence were filed on behalf of the respondent, being that of his wife and
himself. The witnesses for the respondent were :-

i) The respondent Mohd. Ishfaq

ii) The wife of the respondent
iii) Dr. Ashok Sareen
iv) Dr. Vindu Amitabh

24. On behalf of the appellant, six affidavits by way of evidence were filed.
These were of the appellant himself, Dr. Danbar (a doctor attached to the
Haemodialysis Department of Nanavati Hospital), Dr. Abhijit Joshi (a Resident
Senior Houseman of Nanavati Hospital), Mrs. Mukta Kalekar (a Senior sister at
Nanavati Hospital), Dr. Sonawala (the Urologist who referred the respondent to the
appellant) and Dr. Ashique Ali Rawal (a Urologist attached to Prince Aly Khan
Hospital). The witnesses for the appellant were:-

i) The appellant-Dr. M.F. D’Souza

 ii) Dr. Danbar
iii) Dr. Upadhyay
iv) Mrs. Mukta Kalekar
v) Dr. Ashique Ali Rawal

25. The respondent also filed an opinion of the Chief of Nephrology at

Fairview General Hospital, Cleveland, Ohlo, which was heavily relied upon in the
impugned judgment. The appellant has alleged that the said opinion was written
without examining the respondent and, in any case, the appellant was not afforded
an opportunity of cross-examining the person who gave the opinion.
26. The case of the respondent, in brief, is that the appellant was negligent
in prescribing Amikacin to the respondent of 500 mg twice a day for 14 days as such
dosage was excessive and caused hearing impairment. It is also the case of the
respondent that the infection he was suffering from was not of a nature as to
warrant administration of Amikacin to him.
27. The appellant submitted before the Commission that at the time of
admission of the respondent on 29.5.1991 to the hospital, he had fever of 104°F and,
after investigation, it was found that his serum creatinine level was 13 mg%, blood
urea 180 mg% and Haemoglobin 4.3 mg. Amikacin was prescribed to him only after
obtaining blood and urine culture reports on 3rd and 4th June, 1991, which showed
the respondent resistant to other antibiotics. Even the witness of therespondent (Dr.
Sareen) conceded that he would have prescribed Amikacin in the facts of the case.
However, the Commission allowed the complaint of the respondent by way of the
impugned order dated 9.4.2002 and awarded Rs.4 lakh with interest @ 12% from
1.8.1992 as well as Rs.3 lakh as compensation as well as Rs.5000/- as costs.
28. Before discussing the facts of the case, we would like to state the law
regarding Medical Negligence in India.
29. Cases, both civil and criminal as well as in Consumer Fora, are often
filed against medical practitioners and hospitals, complaining of medical negligence
against doctors/hospitals/nursing homes and hence the latter naturally would like to
know about their liability.
30. The general principles on this subject have been lucidly and elaborately
explained in the three Judge Bench decision of this Court in Jacob Mathew vs. State
of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of
those general principles to specific cases.
31. For instance, in para 41 of the aforesaid decision it was observed :

“The practitioner must bring to his task a reasonable degree of

skill and knowledge, and must exercise a reasonable degree of
care. Neither the very highest nor a very low degree of care and
competence is what the law requires.”

32. Now what is reasonable and what is unreasonable is a matter on which

even experts may disagree. Also, they may disagree on what is a high level of care
and what is a low level of care.
33. To give another example, in paragraph 12 to 16 of Jacob Mathew’s case
(Supra), it has been stated that simple negligence may result only in civil liability,
but gross negligence or recklessness may result in criminal liability as well. For civil
liability only damages can be imposed by the Court but for criminal liability the
Doctor can also be sent to jail (apart from damages which may be imposed on him
in a civil suit or by the Consumer Fora). However, what is simple negligence and
what is gross negligence may be a matter of dispute even among experts.
34. The law, like medicine, is an inexact science. One cannot predict with
certainty an outcome of many cases. It depends on the particular facts and
circumstances of the case, and also the personal notions of the Judge concerned who
is hearing the case. However, the broad and general legal principles relating to
medical negligence need to be understood.
35. Before dealing with these principles two things have to be kept in mind :
(1) Judges are not experts in medical science, rather they are lay men. This itself
often makes it somewhat difficult for them to decide cases relating to medical
negligence. Moreover, Judges have usually to rely on testimonies of other doctors
which may not necessarily in all cases be objective, since like in all professions and
services, doctors too sometimes have a tendency to support their own colleagues who
are charged with medical negligence. The testimony may also be difficult to
understand, particularly in complicated medical matters, for a layman in medical
matters like a Judge; and (2) A balance has to be struck in such cases. While doctors
who cause death or agony due to medical negligence should certainly be
penalized, it must also be remembered that like all professionals doctors too can
make errors of judgment but if they are punished for this no doctor can practice his
vocation with equanimity. Indiscriminate proceedings and decisions against doctors
are counter productive and serve society no good. They inhibit the free exercise of
judgment by a professional in a particular situation.
36. Keeping the above two notions in mind we may discuss the broad general
principles relating to medical negligence.

General Principles Relating to Medical Negligence

37. As already stated above, the broad general principles of medical

negligence have been laid down in the Supreme Court Judgment in Jacob Mathew
vs. State of Punjab and Anr. (supra). However, these principles can be indicated
briefly here :
38. The basic principle relating to medical negligence is known as the
BOLAM Rule. This was laid down in the judgment of Justice McNair in Bolam vs.
Friern Hospital Management Committee (1957) 1 WLR 582 as follows :

“Where you get a situation which involves the use of some

special skill or competence, then the test as to whether there has
been negligence or not is not the test of the man on the top of a
Clapham omnibus, because he has not got this special skill. The
test is the standard of the ordinary skilled man exercising and
professing to have that special skill. A man need not possess the
highest expert skill….. It is well-established law that it is
sufficient if he exercises the ordinary skill of an ordinary
competent man exercising that particular art.”

Bolam’s test has been approved by the Supreme Court in Jacob Mathew’s case.
39. In Halsbury’s Laws of England the degree of skill and care required by a
medical practitioner is stated as follows :

“The practitioner must bring to his task a reasonable degree of skill

and knowledge, and must exercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and
competence, judged in the light of the particular circumstances of
each case, is what the law requires, and a person is not liable in
negligence because someone else of greater skill and knowledge
 would have prescribed different treatment or operated in a
different way; nor is he guilty of negligence if he has acted in
accordance with a practice accepted as proper by a responsible
body of medical men skilled in that particular art, even though a
body of adverse opinion also existed among medical men.

Deviation from normal practice is not necessarily evidence of

negligence. To establish liability on that basis it must be shown (1)
that there is a usual and normal practice; (2) that the defendant has
not adopted it; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he been
acting with ordinary care.”

(emphasis supplied)

40. Eckersley vs. Binnie (1988) 18 Con LR 1 summarized the Bolam test in
the following words :

“From these general statements it follows that a professional

man should command the corpus of knowledge which forms
part of the professional equipment of the ordinary member of
his profession. He should not lag behind other ordinary
assiduous and intelligent members of his profession in the
knowledge of new advances, discoveries and developments in his
field. He should have such an awareness as an ordinarily
competent would have of the deficiencies in his knowledge and
the limitations on his skill. He should be alert to the hazards and
risks in any professional task he undertakes to the extent that
other ordinarily competent members of the profession would be
alert. He must bring to any professional task he undertakes no
less expertise, skill and care than other ordinarily competent
members of his profession would bring, but need bring no more.
The standard is that of the reasonable average. The law does not
require of a professional man that he be a paragon combining
the qualities of a polymath and prophet.”

41. A medical practitioner is not liable to be held negligent simply because

things went wrong from mischance or misadventure or through an error of
judgment in choosing one reasonable course of treatment in preference to another.
He would be liable only where his conduct fell below that of the standards of a
reasonably competent practitioner in his field. For instance, he would be liable if he
leaves a surgical gauze inside the patient after an operation vide Achutrao Haribhau
Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates
on the wrong part of the body, and he would be also criminally liable if he
operates on someone for removing an organ for illegitimate trade.
42. There is a tendency to confuse a reasonable person with an error free
person. An error of judgment may or may not be negligent. It depends on the nature
of the error.
43. It is not enough to show that there is a body of competent professional
opinion which considers that the decision of the accused professional was a wrong
decision, provided there also exists a body of professional opinion, equally
competent, which supports the decision as reasonable in the circumstances. As Lord
Clyde stated in Hunter vs. Hanley 1955 SLT 213 :

“In the realm of diagnosis and treatment there is ample scope for
genuine difference of opinion and one man clearly is not negligent
merely because his conclusion differs from that of other
professional men…. The true test for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has
been proved to be guilty of such failure as no doctor of ordinary
skill would be guilty of if acting with ordinary care….”

(emphasis supplied)

44. The standard of care has to be judged in the light of knowledge available
at the time of the incident and not at the date of the trial. Also, where the charge of
negligence is of failure to use some particular equipment, the charge would fail if the
equipment was not generally available at that point of time.
45. The higher the acuteness in an emergency and the higher the
complication, the more are the chances of error of judgment. At times, the
professional is confronted with making a choice between the devil and the deep sea
and has to choose the lesser evil. The doctor is often called upon to adopt a procedure
which involves higher element of risk, but which he honestly believes as providing
greater chances of success for the patient rather than a procedure involving lesser
risk but higher chances of failure. Which course is more appropriate to follow,
would depend on the facts and circumstances of a given case but a doctor cannot be
penalized if he adopts the former procedure, even if it results in a failure. The usual
practice prevalent nowadays is to obtain the consent of the patient or of the person
in-charge of the patient if the patient is not in a position to give consent before
adopting a given procedure.
46. There may be a few cases where an exceptionally brilliant doctor
performs an operation or prescribes a treatment which has never been tried before
to save the life of a patient when no known method of treatment is available. If the
patient dies or suffers some serious harm, should the doctor be held liable? In our
opinion he should not. Science advances by experimentation, but experiments
sometime end in failure e.g. the operation on the Iranian twin sisters who were joined
at the head since birth, or the first heart transplant by Dr. Barnard in South Africa.
However, in such cases it is advisable for the doctor to explain the situation to the
patient and take his written consent.
47. Simply because a patient has not favourably responded to a treatment
given by a doctor or a surgery has failed, the doctor cannot be held straightway
liable for medical negligence by applying the doctrine of res ipsa loquitur. No sensible
professional would intentionally commit an act or omission which would result in
harm or injury to the patient since the professional reputation of the professional
would be at stake. A single failure may cost him dear in his lapse.
48. As observed by the Supreme Court in Jacob Mathew’s case :

“A medical practitioner faced with an emergency ordinarily tries

his best to redeem the patient out of his suffering. He does not gain
anything by acting with negligence or by omitting to do an act.
Obviously, therefore, it will be for the complainant to clearly make
out a case of negligence before a medical practitioner is charged
with or proceeded against criminally. A surgeon with shaky hands
under fear of legal action cannot perform a successful operation and
a quivering physician cannot administer the end-dose of medicine
to his patient.

If the hands be trembling with the dangling fear of facing a criminal

prosecution in the event of failure for whatever reason – whether
attributable to himself or not, neither can a surgeon successfully
wield his life-saving scalpel to perform an essential surgery, nor can
a physician successfully administer the life-savingdose of medicine.
Discretion being the better part of valour, a medical professional
would feel better advised to leave a terminal patient to his own fate
in the case of emergency where the chance ofsuccess may be 10% (or
so), rather than taking the risk of making alast ditch effort towards
saving the subject and facing a criminal prosecution if his effort
fails. Such timidity forced upon a doctor would be a disservice to
society.”

49. When a patient dies or suffers some mishap, there is a tendency to blame
the doctor for this. Things have gone wrong and, therefore, somebody must be
punished for it. However, it is well known that even the best professionals, what to
say of the average professional, sometimes have failures. A lawyer cannot win every
case in his professional career but surely he cannot be penalized for losing a case
provided he appeared in it and made his submissions.
50. To fasten liability in criminal proceedings e.g. under Section 304A IPC
the degree of negligence has to be higher than the negligence which is enough to
fasten liability in civil proceedings. Thus for civil liability it may be enough for the
complainant to prove that the doctor did not exercise reasonable care in accordance
with the principles mentioned above, but for convicting a doctor in a criminal case,
it must also be proved that this negligence was gross amounting to recklessness.
51. The difference between simple negligence and gross negligence has
broadly been explained in paragraphs 12 to 16 of Jacob Mathew’s case, though
difficulties may arise in the application of the principle in particular cases. For
instance, if a mop is left behind in the stomach of a patient while doing an operation,
would it be simple negligence or gross negligence? If a scissors or sharp edged
medical instrument is left in the patient’s body while doing the operation would that
make a difference from merely leaving a mop?
52. The professional is one who professes to have some special skill. A
professional impliedly assures the person dealing with him (i) that he has the skill
which he professes to possess, (ii) that skill shall be exercised with reasonable care
and caution.
53. Judged by this standard, the professional may be held liable for
negligence on the ground that he was not possessed of the requisite skill which he
professes to have. Thus a doctor who has a qualification in Ayurvedic or
Homeopathic medicine will be liable if he prescribes Allopathic treatment which
causes some harm vide Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332.
In Dr. Shiv Kumar Gautam vs. Alima, Revision Petition No.586 of 1999 decided on
10.10.2006, the National Consumer Commission held a homeopath liable for
negligence for prescribing allopathic medicines and administering glucose drip and
giving injections.
Protection to Doctors in Criminal Cases
54. In para 52 of Jacob Mathew’s case the Supreme Court realizing that
doctors have to be protected from frivolous complaints of medical negligence, has
laid down certain rules in this connection :

(i) A private complaint should not be entertained unless the

complainant has produced prima facie evidence before the court in the
form of a credible opinion given by another competent doctor to support
the charge of rashness or negligence on the part of the accused doctor.

(ii) The investigating officer should, before proceeding against

the doctor accused of rash or negligent act or omission, obtain an
independent and competent medical opinion, preferably from a doctor in
government service, qualified in that branch of medical practice who can
normally be expected to give an impartial opinion applying the Bolam
test.

(iii) A doctor accused of negligence should not be arrested in a

routine manner simply because a charge has been leveled against him.
Unless his arrest is necessary for furthering the investigation or for
collecting evidence or unless the investigating officer feels satisfied that
the doctor proceeded against would not make himself available to face the
prosecution unless arrested, the arrest should be withheld.

Precautions which Doctor/Hospitals/Nursing Homes should take :

(a) Current practices, infrastructure, paramedical and other staff,

hygiene and sterility should be observed strictly. Thus, in Sarwat Ali
Khan vs. Prof. R. Gogi and others Original Petition No.181 of 1997,
decided on 18.7.2007 by the National Consumer Commission, the facts
were that out of 52 cataract operations performed between 26 th and 28th
September, 1995 in an eye hospital 14 persons lost their vision in the
operated eye. An enquiry revealed that in the Operation Theatre two
autoclaves were not working properly. This equipment is absolutely
necessary to carry out sterilization of instruments, cotton, pads, linen,
etc., and the damage occurred because of its absence in working
 condition. The doctors were held liable.

(b) No prescription should ordinarily be given without actual

examination. The tendency to give prescription over the telephone, except
in an acute emergency, should be avoided.

(c) A doctor should not merely go by the version of the patient

regarding his symptoms, but should also make his own analysis including
tests and investigations where necessary.

(d) A doctor should not experiment unless necessary and even

then he should ordinarily get a written consent from the patient.

(e) An expert should be consulted in case of any doubt. Thus, in

Smt. Indrani Bhattacharjee, Original Petition No.233 of 1996 decided by
the National Consumer Commission on 9.8.2007, the patient was
diagnosed as having `Mild Lateral Wall Eschemia’. The doctor
prescribed medicine for gastro-entiritis, but he expired. It was held that
the doctor was negligent as he should have advised consulting a
Cardiologist in writing.

(f) Full record of the diagnosis, treatment, etc. should be

maintained.

Application of the above mentioned general principles to particular cases :

Decisions of the Court

55. In Pt. Parmanand Katara vs. Union of India & Others AIR 1989 SC 2039,
the petitioner referred to a report published in the newspaper “The Hindustan
Times” in which it was mentioned that a scooterist was knocked down bya speeding
car. Seeing the profusely bleeding scooterist, a person who was on the road, picked
up the injured and took him to the nearest hospital. The doctors refused to attend
and told the man that he should take the patient to another
hospital located 20 kilometers away authorized to handle medico-legal cases. The
injured was then taken to that hospital but by the time he could reach, the victim
succumbed to his injuries.
56. The Supreme Court referred to the Code of Medical Ethics drawn up
with the approval of the Central Government under Section 33 of the Indian Council
Medical Act and observed “Every doctor whether at a Government Hospital or
otherwise has the professional obligation to extend his services for protecting life.
The obligation being total, absolute and paramount, laws of procedure whether in
statutes or otherwise cannot be sustained and, therefore, must give way.”
57. The Supreme Court held that it is the duty of the doctor in an emergency
to begin treatment of the patient and he should not await the arrival of the police or
to complete the legal formalities. The life of a person is far more important than
legal formalities. This view is in accordance with the Hippocratic oath of doctors.
58. Although this decision has laid down that it is the duty of a doctor to
attend to a patient who is brought to him in an emergency, it does not state what
penalty will be imposed on a doctor who refuses to attend the said patient.
Consequently it will depend on the fact and circumstances of the case. However, this
case is important because nowadays health care has often become a business, asis
mentioned in George Bernard Shaw’s play “The Doctor’s Dilemma”. The medical
profession is a noble profession and it should not be brought down to the level of a
simple business or commerce. The truth of the matter, sadly, is that today in India
many doctors (though not all) have become totally money-minded, and haveforgotten
their Hippocratic oath. Since most people in India are poor the consequence is that
for them proper medical treatment is next to impossible, and hence they have to rely
on quacks. This is a disgrace to a noble profession.
59. In Paschim Banga Khet Mazdoor Samity and others vs. State of West
Bengal and Another AIR 1996 SC 2426, the Supreme Court held that the denial of
emergency aid to the petitioner due to the non availability of bed in the Government
Hospital amounts to the violation of the right to life under Article 21 of the
Constitution. The Court went on to say that the Constitutional obligation imposed
on the State by Article 21 cannot be abdicated on the ground of financial constraint.
60. In Md. Suleman Ansari (D.M.S.) vs. Shankar Bhandari (2005) 12 SCC
430 the respondent suffered a fracture of his hand. He went to the appellant who
held himself out to be a qualified medical practitioner. The appellant bandaged the
respondent’s hand and prescribed certain medicines. He was ultimately taken to
another doctor but by this time the damage to his hand was permanent. It was found
that the appellant was not a qualified doctor to give treatment to the respondent.
The Supreme Court had directed him to pay Rs.80,000 as compensation to the
respondent.
61. In Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110, the appellant
was having a degree of Bachelor of Medicine in Electrohomoeopathy from the Board
of Electrohomoeopathy Systems of Medicines, Jabalpur (M.P.). He did not possess
any recognized medical qualification as defined in the Indian Medical Council Act,
1956. Yet he performed an operation to terminate the three month pregnancy in a
woman, who died in the clinic due to shock due to non application ofanesthesia. The
Supreme Court confirmed his sentence but reduced it to one and a half years
rigorous imprisonment under Section 314/34 IPC and a fine of Rs.25000 payable to
the mother of the deceased.
62. In State of Haryana and others vs. Raj Rani (2005) 7 SCC 22 it was held
that if a child is born to a woman even after she had undergone a sterilization
operation by a surgeon, the doctor was not liable because there cannot be a 100%
certainty that no child will be born after a sterilization operation. The Court
followed the earlier view of another three Judge Bench in State of Punjab vs. Shiv
Ram & others (2005) 7 SCC 1. These decisions will be deemed to have overruled the
two Judge Bench decision in State of Haryana and Others vs. Smt. Santra AIR
2000 SC 1888 in which it was held that if a child is born after the sterilization
operation the surgeon will be liable for negligence.
63. In P.N. Rao vs. G. Jayaprakasu AIR 1990 AP 207, the plaintiff was a
brilliant young boy who had passed the pre-University course securing 100% marks
in Mathematics and 93.5% in physical sciences. He was also getting a monthly
scholarship. He was offered a seat in B.E. Degree course in four Engineering
Colleges. He had a minor ailment - chronic nasal discharge – for which his mother
took him to a doctor for consultation who diagnosed the disease as Nasal Allergy
and suggested operation for removal of tonsils. He was admitted in the Government
General Hospital, Guntur and the operation was performed. He did not regain
consciousness even after three days and thereafter for another 15 days he was not
able to speak coherently. When he was discharged from hospital, he could only
utter a few words and could not read or write and lost all his knowledge and
learning. His father took him to Vellore where he was examined by a Professor of
Neuro Surgery and it was found that his brain had suffered due to cerebral anoxia,
which was a result of improper induction of anaesthetics and failure to take
immediate steps to reduce anaesthesia. The court after examining the witnesses
including the Professor of Anaesthesiology held that defendants were clearly
negligent in discharging their duties and the State Government was vicariously
liable.
64. In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and
Another AIR 1969 SC 128, a patient had suffered from fracture of the femur. The
accused doctor while putting the leg in plaster used manual traction and used
excessive force for this purpose, with the help of three men, although such traction
is never done under morphia alone but done under proper general anaesthesia. This
gave a tremendous shock causing the death of the boy. On these facts the Supreme
Court held that the doctor was liable to pay damages to the parents of the boy.
65. In Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another AIR
2004 SC 4091, the appellant was a doctor accused under Section 304A IPC for
causing death of his patient. The operation performed by him was for removing his
nasal deformity. The Magistrate who charged the appellant stated in his judgment
that the appellant while conducting the operation for removal of the nasal deformity
gave incision in a wrong part and due to that blood seeped into the respiratory
passage and because of that the patient collapsed and died. The High Court upheld
the order of the Magistrate observing that adequate care was not taken to prevent
seepage of blood resulting in asphyxia. The Supreme Court held that from the
medical opinions adduced by the prosecution the cause of death was stated to be
`not introducing a cuffed endotracheal tube of proper size as to prevent aspiration
of blood from the wound in the respiratory passage.’ The Supreme Court held that
this act attributed to the doctor, even if accepted to be true, can be described as a
negligent act as there was a lack of care and precaution. For this act of negligence
he was held liable in a civil case but it cannot be described to be so reckless or grossly
negligent as to make him liable in a criminal case. For conviction in a criminal case
the negligence and rashness should be of such a high degree which canbe described
as totally apathetic towards the patient.
66. In Dr. Sr. Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. the
National Consumer Commission held that Dr. Louie showed herself as an M.D.
although she was only M.D. Freiburg, a German Degree which is equivalent to an
M.B.B.S. degree in India. She was guilty of negligence in treating a woman and her
baby which died. There was vacuum slip, and the baby was delivered in an
asphyxiated condition.
67. In Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112 a patient died
a day after surgery and the relatives found a pair of scissors utilized by the surgeon
while collecting the last remains. The doctor was held liable and a compensation of
Rs.1.20 lakhs was awarded by the State Consumer Forum, Chandigarh.
68. In Spring Medows Hospital & Another vs. Harjol Ahluwalia thr’ K.S.
Ahluwalia & Another (1998) CPJ 1, a minor child was admitted by his parents to a
nursing home as he was suffering fever. The patient was admitted and the doctor
diagnosed typhoid and gave medicines for typhoid fever. A nurse asked the father
of the patient to get an injection Lariago which was administered by the nurse to the
patient who immediately collapsed. The doctor was examined and testified that the
child suffered a cardiac arrest on account of the medicine having being injected
which led to brain damage. The National Commission held that the cause of cardiac
arrest was intravenous injection of Lariago of such a high dose. The doctor was
negligent in performing his duty because instead of administering the injection
himself he permitted the nurse to give the injection. There was clear dereliction of
duty on the part of the nurse who was not even a qualified nurse and was not
registered with any nursing council of any State. Both the doctor and nurse and the
hospital were found liable and Rs.12.5 lakhs was awarded as compensation to the
parents.
69. In Consumer Protection Council and Others vs. Dr. M. Sundaram and
Another (1998) CPJ 3, the facts were that one Mrs. Rajalaxmi was admitted to a
nursing home which diagnosed the ailment as Hodgkin’s Lymphoma. She was
administered Endoxan injection five doses in five days. She was referred to another
doctor who was an ENT specialist, who after examination opined that no lymph
glands were seen. A sample of her bone marrow was sent to an Oncologist who
opined that the picture does not fit with Hodgkin’s disease but the patient had
megaloblastic anemia in the bone marrow. Subsequently she was discharged from
the nursing home and was advised to visit CMC Vellore for treatment. The patient
consulted another doctor who diagnosed the same as renal failure. The complainant
alleged that the first doctor failed and neglected to refer the matter to a Cancer
Specialist but wrongly diagnosed the ailment of the patient as Hodgkin’s Lymphoma
and had unnecessarily administered injection of Endoxan and because of the toxicity
of that drug the kidney cells of the patient got destroyed resulting in renal failure for
which she had to undergo kidney transplantation which led to her death. The
National Commission, upholding the State Commission decision, held that there was
no negligence on the part of the doctor who had consulted a pathologist, and in the
light of discussion with him and on inspection of some more slides of bone marrow
specimens which also revealed the same finding, namely, existence of deposits of
Hodgkin’s Lymphoma, proceeded to administer the patient injections of Endoxan.
It was held on the basis of medical opinion that any prudent consultant physician
would not delay the commencement of chemotherapy where repeated examination
of the bone marrow slides had yielded the report that the Hodgkin’s deposits were
present. Endoxan is a drug of choice in the treatment of Hodgkin’s Lymphoma and
there was no negligence on the part of the doctor.
70. In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and
Another (1998) CPJ 110, the complainant’s wife suffered from Sinusitis and was
advised surgery by the doctor. She had suffered a massive heart attack while in the
operation theatre. The State Commission found that necessary precautions and
effective measures were taken to save the deceased and dismissed the complaint. The
State Commission relied on the affidavits of four doctors who opined that therewas
no negligence. The complainant had not given any expert evidence to support his
allegation and in these circumstances it was held that no case was made out against
the doctor.
71. In A. S. Mittal & Anr. vs. State of U.P. & Ors. JT 1989 (2) SC 419, 1989
(3) SCC 223 a free eye camp was organized for ophthalmic surgical treatment to
patients. However, the eyes of several patients after operation were irreversibly
damaged, owing to post-operative infection of the intra ocular cavities of the eyes,
caused by normal saline used at the time of surgery. The Supreme Court directed
the State Government to pay Rs.12,500/- as compensation to each victim as there
was a clear negligence.
72. In Indian Medical Association vs. V.P. Shantha 1995(6) SCC 651 (vide
para 37) it has been held that the following acts are clearly due to negligence :
 (i) Removal of the wrong limb;
(ii) Performance of an operation on
the wrong patient;
(iii) Giving injection of a drug
to which the patient is
allergic without looking
into the out-patient card
containing the warning;

(iv) Use of wrong gas during the

course of an anaesthetic, etc.

73. From the aforementioned principles and decisions relating to medical

negligence, with which we agree, it is evident that doctors and nursing
homes/hospitals need not be unduly worried about the performance of their
functions. The law is a watchdog, and not a bloodhound, and as long as doctors do
their duty with reasonable care they will not be held liable even if their treatment
was unsuccessful.
74. However, every doctor should, for his own interest, carefully read the
Code of Medical Ethics which is part of the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002 issued by the Medical Council of
India under Section 20A read with Section 3(m) of the Indian Medical Council Act.
1956.
75. Having mentioned the principles and some decisions relating to medical
negligence (with which we respectfully agree), we may now consider whether the
impugned judgment of the Commission is sustainable. In our opinion the judgment
of the Commission cannot be sustained and deserves to be set aside.
76. The basic principle relating to the law of medical negligence is the Bolam
Rule which has been quoted above. The test in fixing negligence is the standard of
the ordinary skilled doctor exercising and professing to have that special skill, but a
doctor need not possess the highest expert skill. Considering the facts of the case we
cannot hold that the appellant was guilty of medical negligence.
77. The facts of the case reveal that the respondent was suffering from
chronic renal failure and was undergoing haemodialysis twice a week on that
account. He was suffering from high fever which remained between 101°-104°F. He
refused to get admitted to hospital despite the advice of the appellant. The
appellant prescribed antibiotics for him. The respondent was also suffering from
severe urinary tract infection which could only be treated by Amikacin or
Methenamine Mandelate. Since Methenamine Mandelate cannot be used in patients
suffering from renal failure, Amikacin injection was administered to him.
78. A perusal of the complaint filed by the respondent before the National
Commission shows that his main allegation is that he suffered hearing impairment
due to the negligence of the appellant herein who allegedly prescribed overdose of
Amikacin injections without caring about the critical condition of the respondent
which did not warrant that much dose. The complainant (respondent herein) has
alleged that due to this medical negligence the complainant has suffered mental
torture and frustration and other signs of helplessness and is feeling totally
handicapped, and his efficiency in office has got adversely affected. It may be
mentioned that the respondent is working as Export Promotion Officer in the
Ministry of Commerce, Udyog Bhawan, New Delhi.
79. The case of the appellant, however, is that the complainant was referred
to the appellant by Dr. F. P. Soonawalla, the renowned Urologist of Bombay. The
complainant had consulted Dr. F. P. Soonawalla who had referred the complainant
to the appellant for routine Haemodialysis and pre-transplant treatment. In our
opinion, the very fact that Dr. Soonawalla referred the complainant to the appellant
is an indication that the appellant has a good reputation in his field, because Dr.
Soonawalla is an eminent doctor of India of international repute, and he would not
have ordinarily referred a patient to an incompetent doctor. This is one factor which
goes in favour of the appellant, though of course it is not conclusive.
80. It appears that after the complainant was referred to the appellant by Dr.
Soonawalla he met the appellant for the first time on 24.4.1991 as an outdoor patient
in the Haemodialysis Unit attached to Bulabhai Nanavati Hospital, Bombay.After
examining the complainant, the appellant found that the complainant was a patient
of Chronic Renal Failure due to Bilateral Poly Cystic Kidneys. Hence the appellant
suggested to the complainant to have Haemodialysis twice a week as an outdoor
patient. The complainant was also investigated to find a suitable kidney donor.
81. The appellant has alleged in his written statement filed before the
National Commission that the complainant was in a hurry to have a quick kidney
transplant by Dr. Soonawalla and he was very obstinate, stubborn and short-
tempered. Dr. Soonawalla was out of India from 1.6.1991 to 1.7.1991. On 20.5.1991,
the complainant approached the appellant with high fever of 101-103OF, and the
appellant suggested immediate admission of the complainant in the hospital for
detailed investigation and treatment but the complainant refused to get himself
admitted and refused to comply with the advice. Hence the appellant was obliged to
put the complainant on a Broad Spectrum Antibiotic Ampoxim 500 mg four times a
day and Tab. Crocin – SOS fever.
82. From 21.5.1991, the complainant attended the Haemodialysis unit of the
hospital on three occasions and informed the appellant that the fever had not yet
remitted. The appellant again advised the complainant to get admitted in hospital,
but he refused the advice on account of his obstinacy.
83. On 29.5.1991, the complainant was in a serious condition having high
fever of 104OF. After much persuasion he finally agreed to be admitted for final
investigation and got admitted in the hospital on 29.5.1991.
84. The complainant was investigated on 30.5.1991 and his report showed
High Creatinine - 13 mg., Blood Urea – 180 mg and Haemoglobin 4.3% which was
5 days prior to the commencement of the injection Amikacin and not after the said
injection.
85. In our opinion it is clear that the respondent already had high Blood
Creatinine, Blood Urea and low Haemoglobin before the injection of Amikacin. He
had also high fever which was on account of serious blood and urinary tract
infection. The appellant was of the view that the respondent’s infection could only
be treated by injection of Amikacin, as Methenamine Mandelate could not be used
due to his chronic renal failure. The respondent’s report also established his
resistance to all other antibiotics. Gastroscopy was done on 4.6.1991 and Amikacin
was administered after test dosage only from 5.6.1991. Amikacin was administered
on 5th, 6th and 7th June, 1991 and at this stage he did not complain of any side effects
and his temperature subsided rapidly. On 5.6.1991, he was administered Cap.
Augmentin 375 mg three times a day for his serious Blood Infection and he was also
transferred one Unit of Blood during dialysis and his temperature subsided rapidly
and he felt much better.
86. The appellant advised the respondent in view of his blood infection that
he should not get transplanted for six weeks, but the complainant/respondent
insisted on getting the transplant although he was not medically in fit condition.
Hence the appellant advised the respondent to further stay in the hospital for some
time, but the respondent did not agree and he started shouting at the top of his voice
and insisted to be discharged from the hospital on his own on 8.6.1991 at 9 a.m..
87. In view of his insistence the respondent was discharged from the hospital
on his own on 8.6.1991 at 9 a.m.. The appellant suggested alternate day
Haemodialysis but the respondent refused saying that he was staying too far away
and could not come three times a week for Haemodialysis. In this situation, the
appellant was left with no choice but to suggest Injection Amikacin (500 mg) twice a
day in view of the respondent’s infection and delicate condition and his refusal to
visit the Haemodialysis facility on alternate dates. The appellant also suggested the
following drugs under the supervision of the doctor when he would visit the dialysis
unit:

“1. Injection Amikacin 500 mg twice a day x 10

days for urinary tract infection.
2. Cap. Augmentine 375 mg 3 times a day for 6
weeks for blood infection
3. Cap. Becosule tab daily
4. Tab. Folvite 1 tab. Daily
5. Syrup Alludux
6. Injection Engrex once a month for 2 months
7. Cap. Bantes 100 mg twice a day”

88. It appears that the respondent attended the Haemodyalsis unit where he
met the appellant on 11th, 14th, 18th and 20th June, 1991. Thereafter the respondent
did not come to the hospital.
89. On 11.6.1991 the respondent complained to the appellant of slight
tinnitus or ringing in the ear. The appellant immediately reviewed the treatment on
the discharge card in possession of the respondent and asked the said respondent
and also asked his attendant i.e. his wife to stop Injection Amikacin and Cap.
Augmantine verbally, and also marked ‘X’ on the discharge card in his own hand
writing on 11.6.1991 i.e. 3 days after discharge. Hence, as per direction of the
appellant the respondent should have stopped receiving Injection Amikacin after
10.6.1991, but on his own he kept on taking Amikacin Injections. The Discharge
Card as per the respondent’s complaint clearly shows that the said injection had
been ‘X’ crossed, and he was directed not to take the said injection from 11.6.1991
i.e. on his very first complaint when he made mention of ringing in the ears or
tinnitus.
90. On perusal of the Xerox copies of the papers of the Cash Memo supplied
by the respondent as per annexure ‘4’ it is in our opinion evident that the respondent
continued to take the medicine against the advice of the appellant, and had
unilaterally been getting injected as late as 17.6.1991, i.e. 7 days after he had been
instructed verbally and in writing in the presence of his attendant i.e. his wife and
staff members of the said hospital to stop Injection Amikacin/Cap. Augmantine
because of tinnitus as early as on 11.6.1991.
91. On 19.6.1991 a relative of the respondent who identified himself on the
phone as one Mr. Khan from Byculla rang up and stated that the said respondent
was once again running high fever. The appellant once again immediately advised
him urgent admission to the said hospital which the respondent refused to comply
and said that he would go elsewhere.
92. From the above facts it is evident that the appellant was not to blame in
any way and it was the non-cooperative attitude of the respondent, and his
continuing with the Amikacin injection even after 11.6.1991 which was the cause of
his ailment, i.e. the impairment of his hearing. A patient who does not listen to his
doctor’s advice often has to face the adverse consequences.
93. It is evident from the fact that the respondent was already seriously ill
before he met the appellant. There is nothing to show from the evidence that the
appellant was in any way negligent, rather it appears that the appellant did his best
to give good treatment to the respondent to save his life but the respondent himself
did not cooperate.
94. Several doctors have been examined by the National Commission and we
have read their evidence which is on record. Apart from that, there is also the
opinion of Prof. P. Ghosh of All India Institute of Medical Sciences who had been
nominated by AIIMS as requested by the Commission, which is also on record. It
has been stated by Dr. Ghosh that many factors in the case of renal diseases may
cause hearing loss. Prof. Ghosh has stated that it is impossible to foretell about the
sensitivity of a patient to a drug, thereby making it difficult to assess the
contributions towards toxicity by the other factors involved. Hearing loss in renal
patients is a complex problem which is a result of many adverse and unrelated
factors. Generally, the state of hearing of a renal patient at any time is more likely to
be the result of a multifactorial effect than the response to a single agent.
95. Prof Ghosh has no doubt mentioned that concomitant use of
Aminoglycoside antibiotics (e.g. Amikacin) and loop diuretic may lead to summation
and potentiation of ototoxic effect, and the patient has a higher risk factor of hearing
impairment if there is a higher dose of Amikacin. However, he has stated that such
gross impairment of the balancing function has perhaps been wrought by a
combination of factors.
96. Prof Ghosh has also opined that the Amikacin dose of 500 mg twice a day
for 14 days prescribed by the doctor was a life saving measure and the appellant did
not have any option but to take this step. Life is more important than saving the
function of the ear. Prof Ghosh was of the view that antibiotics was rightly given on
the report of the sensitivity test which showed that the organisms were sensitive to
Amikacin. Hence the antibiotic, was not blindly used on a speculation or as a clinical
experiment.
97. Prof Ghosh mentioned that in the literature on Amikacin it has been
mentioned that in a life threatening infection adult dosage may be increased to 500
mg every eight hours but should not be administered for longer than 10 days.
98. In view of the opinion of Prof Ghosh, who is an expert of the All India
Institute of Medical Sciences, we are clearly of the view that the appellant was not
guilty of medical negligence and rather wanted to save the life of the respondent.
The appellant was faced with a situation where not only was there kidney failure of
the patient, but also urinary tract infection and blood infection. In this grave
situation threatening the life of the patient the appellant had to take drastic steps.
Even if he prescribed Amikacin for a longer period than is normally done, he
obviously did it to save the life of the respondent.
99. We have also seen the evidence of other doctors as well as the affidavits
filed before the National Commission. No doubt some of the doctors who have
deposed in this case have given different opinions, but in cases relating to allegations
of medical negligence this Court has to exercise great caution.
100. Dr. Ashok Sareen who is MD in medicine and trained in Nephrology has
in his evidence stated that for Kidney failure patients one has to be very careful with
the drug Amikacin. He stated that he uses the drug only when other antibiotics have
failed or cannot be used. It should be used with wide intervals and only when
absolutely necessary and when no other drug is available. When asked whether
Amikacin should be given to a patient with 10 days stretch, as was prescribed by the
appellant in this case, Dr. Sareen replied that it was difficult to give an answer to
that question because it depends entirely on the treating physician. Dr. Sareen has
admitted that giving Amikacin injection twice a day for 14 days can cause nerve
deafness which means losing one’s hearing. No doubt, Dr. Sareen in his cross-
examination stated that he would have prescribed the dose given to the respondent
differently but he has not stated what would be the dose he would have prescribed.
101. We have also perused the evidence of Dr. Vindu Amitabh, who is a MD
in medicine in Safdarjung hospital and looking after Nephrology also. He has stated
that normally Amikacin is given for 5 to 7 days twice daily. However, he hasalso
stated that in severe circumstances it can be given for a longer period but if the
patient is developing complications then the doses should be stopped immediately.
If there is no substitute for it then Amikacin should be given in a very guarded dose.
He has admitted that Amikacin can lead to deafness.
102. In the affidavit of Dr. Raval of the Bombay Indian Inhabitant, who has
been practicing in Urology for several years it is stated that the respondent had
undergone a kidney transplant operation under Dr. Raval’s supervision on 30th July
1991 at the Prince Alikhan Hospital, Bombay and he was discharged on 13th August,
1991. Dr. Raval has stated in his affidavit that during the time the respondent was
under his care he had a free conversation in English and Urdu without the aid of
interpreter and he did not complain of suffering any hearing problem until he was
discharged in the middle of August 1991. An affidavit to the same effect has been
given by Dr. Kirti L. Upadhyaya, of Bombay Indian Inhabitant, who is also a
Nephrologist. He stated that the respondent did not complain of any hearing
problem to him also.
103. An affidavit has also been filed by Dr. Sharad M. Sheth, of Bombay
Indian Inhabitant who is also MD qualified in Nephrology. He also stated in
paragraph 3 of his affidavit as follows:-

“I state that in the circumstances of the case when

Klebsiella Organism was found resistant to all powerful drugs
inclusive of Augmentin with the exception of Amikacin any
nephrologist of a reasonable standard of proficiency would have
prescribed “Amikacin” drug in measured doses as a life saving
 drug despite the well established fact that this drug might cause
‘tinnitus’ or partial hearing impairment which is reversible, to
almost complete extent in most of the cases after discontinuation
of the drug as soon as any of the above symptoms makes its
appearance. I state that in this situation, ‘Amikacin’ could not
have been avoided if the danger to the lifeof the patient had to
be thwarted. The diagnosis of Dr. M.F. D’Souza and the line of
treatment adopted and administered to the said Shri Mohd.
Ishaq, who was suffering from a renal failure in addition to the
above specific infections appears to becorrect.”

104. The appellant has also filed his own affidavit before the National
Consumer Commission which we have perused. We have also seen the affidavit of
Dr. Ashok L. Kirpalani of Lady Ratan Tata Medical Centre, Bombay, who is MD in
Nephrology. He stated that the medicine prescribed by the appellant was absolutely
right in the circumstances in view of the fact, that the patient was suffering serious
life threatening infection.
105 We may also refer to the affidavit of Mrs. Mukta Kolekar of Bombay
Indian Inhabitant, who is a Senior Sister attached to the hospital. She has stated in
her affidavit as follows :-

“I know Dr. Martin F.D’Souza who is a Nephrologist

and who is attached to the said hospital since 1984. I say that I know
Mr. Mohd. Ishaq. I distinctly remember him, as very few patients
are as ill-tempered arrogant and obstinate like him. The said Mohd.
Ishaq came to the said hospital as an outdoor as well as indoor
patient for Haemodialysis on a number of occasions commencing
from the month of April, 14th 1991 till 20th June, 1991till 8th June,
1991 until suo moto he left the hospital. I say that on 11th June,1991
the said Mohd. Ishaq came to the hospital for the purpose of
Haemodialysis. He had come of his own and he had no problem
either in walking or in hearing. Nothing abnormal was found in
him. However, during Haemodialysis, he complained to the Doctor
of ringing in the ears and thereupon Dr. Martin F.D’Souza called
for the Discharge Card of the said Mohd. Ishaq and verified the
medicine and injections which were prescribed andon verification,
Dr. Martin F.D’Souza immediately deleted injection Amikacine
and Cap. Augmentin and put a cross against the prescription of the
said injection, and immediately gave instructions to me as well as
to the other staff members not to give that injection at all, and also
told the said Mohd. Ishaq and his wife who had accompanied him,
not to take or get administered the
 said injection.

I say that after 11th June, 1991, the said Mohd. Ishaq came to the
hospital as an outdoor patient on 14th June, 17th June and 20th June,
1991 and did not make any complaint of any nature whatsoever
with regard to his hearing faculties. On the contrary, he used to
have conversation and used to respond to the same as anordinary
man. The said Mohd. Ishaq used to come to hospital on his own
without the assistance or help of anybody and after the dialysis also
he used to go on his own. Thus, until 20th June, 1991, the said Mohd.
Ishaq had no problems either in hearing or in movement of the
limbs or parts of his body or in lifting parts of his body or in
walking.”

106. From these deposition and affidavits it cannot be said that the appellant
was negligent. In fact most of the doctors who have deposed or given their affidavits
before the Commission have stated that the appellant was not negligent.
107. In his written statement filed before the National Commission the appellant
has stated in paragraph 9 (q-r) as follows :
“(q) On the 11th June,1991 the Complainant
complained to Opposite Party of slight tinnitus or ringing in the
ear. Opposite Party immediately reviewed the treatment on the
discharge card in possession of the Complainant and asked the
said Complainant and also made his attendant i.e. his wife to
understand and asked her also to stop Injection Amikacin and
Cap. Augmentin verbally as well as marked ‘X’ on the discharge
card in his own hand writing i.e. on 11th June, 1991
i.e. 3 days after discharge. Therefore, as per direction Opposite
Party Complainant could have taken or received Injection
Amikacin only upto 10th June, 1991 when he showed the very
first and Preliminary side effect of Injection Amikacin.
Discharge Card as per the Complainant’s Complaint Annexure
‘3’speaks clearly that the said Injection has been ‘X’ crossed and
he was directed not to take the said Injection from 11th June,
1991 i.e. on his very first complaint he made of ringing in the
ears, or tinnitus.

(r) On perusal of the Xerox copies of the papers of the

Cash Memo supplied by the Complainant as per Annexure ‘4’
it is evident that the Complainant against the advice of the
Opposite Party and in breach of assurances, high handedly and
unilaterally had been getting injected as late as 17th June, 1991
i.e. 7 days after he had been instructed verbally and in writing
in the presence of his attendant i.e. his wife and staff members
of the said hospital to stop Injection Amikacin/Cap. Augmentin
because of tinnitus as early as 11th June, 1991”
108. We see no reason to disbelieve the above allegations of the appellant that
on 11.6.1991 he had asked the respondent to stop taking Amikacin injections, and in
fact this version is corroborated by the testimony of the Senior Sister Mukta Kolekar
in her affidavit, relevant part of which has been quoted above. Hence, it was the
respondent himself who is to blame for having continued Amikacin after
11.6.1991against the advice of the appellant.
109. Moreover, in the statement of Dr. Ghosh before the National Consumer
Dispute Redressal Commission it has been stated that it is by no means established
that Amikacin alone can cause deafness. Dr. Ghosh stated that there are 8 factors
that can cause loss of hearing. Moreover, there are conflicting versions about the
deafness of the respondent. While the respondent stated that he became deaf in June
1991, most of the Doctors who filed affidavits before the Commission have stated
that they freely conversed with him in several meetings much after 21st June and in
fact up to the middle of August 1991.
110. The National Commission had sought the assistance of AIIMS to give a
report about the allegations of medical negligence against the appellant. AIIMS had
appointed Dr. Ghosh to investigate the case and submit a report and Dr. Ghosh
submitted a report in favour of appellant. Surprisingly, the Commission has not
placed much reliance on the report of Dr. Ghosh, although he is an outstanding ENT
specialist of international repute.
111. We have carefully perused the judgment of the National Commission and
we regret that we are unable to concur with the views expressed therein. The
Commission, which consists of laymen in the field of medicine, has sought to
substitute its own views over that of medical experts, and has practically acted as
super-specialists in medicine. Moreover, it has practically brushed aside the
evidence of Dr. Ghosh, whose opinion was sought on its own direction, as well as the
affidavits of several other doctors (referred to above) who have stated that the
appellant acted correctly in the situation he was faced.
112. The Commission should have realized that different doctors have
different approaches, for instance, some have more radical while some have more
conservative approaches. All doctors cannot be fitted into a straight-jacketed
formula, and cannot be penalized for departing from that formula.
113. While this Court has no sympathy for doctors who are negligent, it must
also be said that frivolous complaints against doctors have increased by leaps and
bounds in our country particularly after the medical profession was placed within
the purview of the Consumer Protection Act. To give an example, earlier when a
patient who had a symptom of having a heart attack would come to a doctor, the
doctor would immediately inject him with Morphia or Pethidine injection before
sending him to the Cardiac Care Unit (CCU) because in cases of heart attack time is
the essence of the matter. However, in some cases the patient died before he reached
the hospital. After the medical profession was brought under the Consumer
Protection Act vide Indian Medical Association vs. V.P. Shantha 1995
(6) SCC 651 doctors who administer the Morphia or Pethidine injection are often
blamed and cases of medical negligence are filed against them. The result is that
many doctors have stopped giving (even as family physicians) Morphia or Pethidine
injection even in emergencies despite the fact that from the symptoms the doctor
honestly thought that the patient was having a heart attack. This was out of fear that
if the patient died the doctor would have to face legal proceedings.
114. Similarly in cases of head injuries (which are very common in road side
accidents in Delhi and other cities) earlier the doctor who was first approached
would started giving first aid and apply stitches to stop the bleeding. However, now
what is often seen is that doctors out of fear of facing legal proceedings do not give
first aid to the patient, and instead tell him to proceed to the hospital by which time
the patient may develop other complications.
115. Hence Courts/Consumer Fora should keep the above factors in mind
when deciding cases related to medical negligence, and not take a view which would
be in fact a disservice to the public. The decision of this Court in Indian Medical
Association vs. V.P. Shantha (Supra) should not be understood to mean that doctors
should be harassed merely because their treatment was unsuccessful or caused some
mishap which was not necessarily due to negligence. In fact in the aforesaid decision
it has been observed (vide para 22) :-

“In the matter of professional liability professions differ

from other occupations for the reason that professions operate
in spheres where success cannot be achieved in every case and
very often success or failure depends upon factors beyond the
professional man’s control.”……………
116. It may be mentioned that the All India Institute of Sciences has been
doing outstanding research in Stem Cell Therapy for the last eight years or so for
treating patients suffering from paralysis, terminal cardiac condition, parkinsonism,
etc, though not yet with very notable success. This does not mean that the work of
Stem Cell Therapy should stop, otherwise science cannot progress.
117. We, therefore, direct that whenever a complaint is received against a
doctor or hospital by the Consumer Fora (whether District, State or National) or by
the Criminal Court then before issuing notice to the doctor or hospital against whom
the complaint was made the Consumer Forum or Criminal Court should firstrefer
the matter to a competent doctor or committee of doctors, specialized in the field
relating to which the medical negligence is attributed, and only after that doctor or
committee reports that there is a prima facie case of medical negligence should
notice be then issued to the concerned doctor/hospital. This is necessary to avoid
harassment to doctors who may not be ultimately found to be negligent. We further
warn the police officials not to arrest or harass doctors unless the facts clearly come
within the parameters laid down in Jacob Mathew’s case (supra), otherwise the
policemen will themselves have to face legal action.
118. In the present case the appellant was faced with an extremely serious
situation. Had the appellant been only suffering from renal failure it is possible that
a view could be taken that the dose prescribed for the appellant was excessive.
However, the respondent was not only suffering from renal failure but he was also
suffering from urinary tract infection and also blood infection i.e Septicaemia which
is blood poisoning caused by bacteria or a toxin. He had also extremely high urea.
In this extremely serious situation, the appellant had naturally to take a drastic
measure to attempt to save the life of the respondent. The situation was aggravated
by the non-cooperation of the respondent who seems to be of an assertive nature as
deposed by the witnesses. Extraordinary situations require extraordinary remedies.
Even assuming that such a high dose of Amikacin would ordinarily lead to hearing
impairment, the appellant was faced with a situation between the devil and the deep
sea. If he chose to save the life of the patient rather than his hearing surely he cannot
faulted.
119. In the present case the blood urea of the respondent was found to be 180
mgs.% whereas normally it should not exceed 10-50 mgs.%. This shows that very
serious infection in the kidney of the respondent was taking place which required
drastic measures.
120. The allegation against the appellant is that he gave overdose of the
antibiotic. In this connection it may be mentioned that antibiotics are usually given
for a minimum of five days, but there is no upper limit to the number of days for
which they should continue, and it all depends on the condition of the patient. Giving
lesser dose of antibiotic may create other complications because it can cause
resistance in the bacteria to the drug, and then it will be more difficult to treat.
121. As regards the impairment of hearing of the respondent it may be
mentioned that there is no known antibiotic drug which has no side effect. Hence
merely because there was impairment in the hearing of the respondent that does not
mean that the appellant was negligent. The appellant was desperately trying to save
the life of the respondent, which he succeeded in doing. Life is surely more important
than side effects.
122. For example many Anti Tubercular drugs (e.g. Streptomycin) can cause
impairment of hearing. Does this mean that TB patients should be allowed to die
and not be given the Anti Tubercular drug because it impairs the hearing? Surely
the answer will be in the negative.
123. The courts and Consumer Fora are not experts in medical science, and
must not substitute their own views over that of specialists. It is true that the medical
profession has to an extent become commercialized and there are many doctors who
depart from their Hippocratic oath for their selfish ends of making money. However,
the entire medical fraternity cannot be blamed or branded as lacking in integrity or
competence just because of some bad apples.
124. It must be remembered that sometimes despite their best efforts the
treatment of a doctor fails. For instance, sometimes despite the best effort of a
surgeon, the patient dies. That does not mean that the doctor or the surgeon must
be held to be guilty of medical negligence, unless there is some strong evidence to
suggest that he is.
125. On the facts of this particular case, we are of the opinion that the
appellant was not guilty of medical negligence. Resultantly, the appeal is allowed;
the impugned judgment and order of the National Commission is set aside. No costs.
 ......................J.
[MARKANDEY KATJU]

.....................J.
[R.M. LODHA]
New Delhi,
February 17, 2009.
 2011:KER:5303

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT :

THE HONOURABLE MR. JUSTICE P.BHAVADASAN

FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932

SA.No. 832 of 2000(G)

----------------------------------
AS.NO.49/98 OF I ADDL.SUB COURT, ERNAKULAM
O.S.NO.711/96 OF IIND ADDL.MUNSIFF COURT, ERNAKULAM.
......

APPELLANT(S): APPELLANT/1ST DEFENDANT:

----------------------------------------------------------------------

DR. AJAYAN,
ASST.SURGEON, GOVT. HOSPITAL,
PEROORKADA, TRIVANDRUM.

BY ADV. SRI.GEORGE THOMAS (MEVADA)

RESPONDENT(S): 1ST & 2ND RESPONDENTS/PLAINTIFF/2ND DEFENDANT:

---------------------------------------------------------------------------------------------------------------

1. MRS. MONI, W/O.DIVAKARAN, CHITTETH HOUSE,

PONNURUNNI, VYTTILA PO, KOCHI - 682 019.

2. THE STATE OF KERALA, REPRESENTED BY THE

CHIEF SECRETARY, GOVRNMENT OF KERALA,
TRIVANDRUM.

R1 BY ADV. SRI. K.R. MOHANAN

R2 BY GOVERNMENT PLEADER SRI. JAYAKRISHNAN P.R.

THIS SECOND APPEAL HAVING BEEN FINALLY HEARD

ON 20/01/2011, THE COURT ON 04/02/2011 DELIVERED THE
FOLLOWING:

Kss
 2011:KER:5303

ORDER ON I.A.NO.399/2003 IN S.A.NO.832/2000

DISMISSED

4/02/2011 SD/- P.BHAVADASAN, JUDGE

/TRUE COPY/

P.S.TO JUDGE

Kss
 2011:KER:5303

P. BHAVADASAN, J.
---------------------------
S.A. No. 832 of 2000
-----------------------------
Dated this the 4th day of February, 2011.

JUDGMENT

The courts below found that the first defendant in

O.S. 711 of 1996 before the Munsiff's court, Ernakulam to be

negligent in treating the plaintiff in the suit, whereby she had

to incur heavy damages for further treatment at a different

hospital. The aggrieved first defendant has come up in appeal.

The parties and facts are hereinafter referred to as they are

available before the trial court.

2. It is not in dispute that the plaintiff was admitted

in General Hospital, Ernakulam in the early hours of 26.6.1995.

On the said day, at about 8.30 a.m. the first defendant is said

to have examined her and according to the plaintiff she and her

husband were told that a surgery isnecessary to cure her illness.

The plaintiff speaks about some payments made to the doctor.

Several tests were done on 1.7.1995, 4.7.1995 and 8.7.1995.

All along, according to the

 2011:KER:5303

S.A.832/2000. 2

plaintiff, the first defendant reiterated that a surgery was

the only option. According to the plaintiff, it so happened that

the Minister for Health happened to visit the hospital and the

husband of the plaintiff complained about the hospital

building. It is also stated that somebody had complained to

the Minister about bribes being insisted by the first defendant

and that annoyed and irritated him. He thereafter became

indifferent and careless in treating the plaintiff and discharged

her on 11.7.1995 when she had not recovered from her illness.

Thereafter she had to go to Ernakulam Medical Centre and to

undergo a surgery. Shehad incurred heavy expenses and had

undergone lot of sufferings. Pointing out that the need for

operation arose due to the negligence on the part of the first

defendant doctor, the suit was laid for damages.

3. The first defendant resisted the suit. He denied

the allegations in the plaint and pointed out that he had

done what a doctor would do in the circumstances under

which the plaintiff was placed and he had never told either
 2011:KER:5303

S.A.832/2000. 3

the plaintiff or the husband of the plaintiff that operation

was the only remedy. He asserted that he had followed

conservative method of treatment and since the patient had

responded to the treatment, he felt that surgery was

unnecessary. He also pointed out that at the time of

discharge the plaintiff was given specific instruction that if

there was any discomfort or illness, she should at once come

and meet him. But after getting discharged, the plaintiff

never turned up and he had no reason to think that the

plaintiff was not cured. Denying that he was in any way

negligent in treating the plaintiff, he prayed for a dismissal

of the suit.

4. On the above pleadings, necessary issues were

raised by the trial court. The evidence consists of the

testimony of P.Ws.1 to 8 and marked Exts.A1 to A19 from

the side of the plaintiff. The first defendant examined

himself as D.W.1. Exts. X1 and X2 series were marked as

third party exhibits. The trial court on an examination of the

medical records and on the basis of the evidence of the first

 2011:KER:5303

S.A.832/2000. 4

defendant as D.W.1 came to the conclusion that there was

gross negligence on the part of the first defendant and

decreed the suit.

5. The first defendant carried the matter in appeal

as A.S. 49 of 1998 before the Sub Court, Ernakulam. Thelower

appellate court after an evaluation of the evidence concurred

with the trial court and dismissed the appeal.

6. Notice is seen to have been issued on the

following questions of law:

“1) Were not the courts below wrong in

awarding damages to the plaintiff in the absence
of any proof regarding negligent conduct from the
part of the 1st defendant resulting in any injury to
the plaintiff?
2) Were not the courts below totally in error
in completely ignoring the evidence of P.W.7 and
Ext.X2 that the plaintiff had a long previous history
of stomach complaints and she had undergone
several months of continuous treatment at
Ernakulam Medical Centre for discharge of blood
through mouth and anus etc even after the surgery
in July 1996 and the
 2011:KER:5303

S.A.832/2000. 5

claimed cure and yet finding the 1st defendant is

guilty of negligence in not performing a surgery
on the plaintiff?
3. Were not the courts below totally in error
in allowing Rs.6,000/- also as compensation to the
plaintiff which amount was admittedly expended
for the treatments at Ernakulam Medical Centre
unconnected with the surgery for intussusception?
4. The Hon'ble Supreme Court of India in AIR
1969 Sc 132 held that a Doctor is entitled to decide
the course of treatment in an emergency. Were not
the court below wrong in refusing to follow this
principle of law laid down by the apex court and
finding the first defendant guilty of negligence in
not operating on the plaintiff?
5. In as much as there is no proof of any
injury being suffered by the plaintiff due to the
alleged negligence of the 1st defendant are not the
judgments against the dictum laid down in AIR1936
PC 154?
6. Has not the courts below completely
misread the pleadings and evidence in the case
and came to absurd conclusions?
7. Is the judgment and decree passed nearly
an year after the final hearing valid in law? Is not
 2011:KER:5303

S.A.832/2000. 6

such judgment invalid and inoperative in view of

the mandate under Order 20 of CPC?”

7. In fact the only question that arises for

consideration is whether there is sufficient proof to show that

the first defendant was negligent in treating the plaintiff.

8. Learned counsel appearing for the appellant

pointed out that both the courts below had not properly

addressed themselves to the legal principles involved in the

case and have mechanically acted on the basis of some records

which too had not been properly considered. Learned counsel

pointed out that allegation regarding the taking of bribe etc.

remains unproved and there is nothingto indicate that the

first defendant was negligent in treating the plaintiff. In fact

the evidence of the doctors examined by the plaintiff herself

would show that the first defendant had resorted to the normal

course of treatment which a doctor would adopt in a

circumstance under which the plaintiff was placed and there

is nothing to show that he

 2011:KER:5303

S.A.832/2000. 7

had done any negligent act, which aggravated the illness of

the plaintiff. Learned counsel very fairly conceded that

there may be some inconsistencies in the evidence of

D.W.1 and the records maintained in the hospital. But that

is insufficient to show that the first defendant was negligent.

The test to be applied is whether the first defendant had

exercised the skill and expertise required of him and not

whether there were slight discrepancies in the evidence.

The proper approach is to ascertain whether a person with

skill and expertise of the first defendant would have

normally resort to the mode of treatment adopted by him in

the case of the plaintiff. If the course of treatment chosen by

the first defendant is an accepted mode of treatment, then

the mere fact that a better method could have been chosen

is not a ground to hold that the first defendant was

negligent. An appreciation of the evidence in the case,

according to learned counsel, would clearly show that the

claim of the plaintiff that the first defendant had told her

and her husband that surgery was the only option cannot be
 2011:KER:5303

S.A.832/2000. 8

true. Even going by the evidence adduced by the plaintiff, it is

clear that surgery is the last option. It was also pointed out

that except for the ipsi dixit of the plaintiff, there is nothing

to show that she was not relieved of her illness atthe time

of discharge from the General Hospital on 11.7.1995. Of

course, she was asked to continue taking medicines for a while.

According to learned counsel, there is absolute want of

evidence to show that the first defendant was in any way

negligent in giving treatment to the plaintiff.

9. In reply, learned counsel appearing for the

respondents pointed out that both the courts below

meticulously analysed the evidence on record and have come

to the conclusion that the first defendant was negligent. There

is considerable inconsistency between the evidence of D.W.1

and the official records maintained in the hospital and that is

sufficient to show that there was absolute want of care and

caution on the part of the first defendant in treating the

plaintiff. Learned counsel went on to contend that the nature

of illness of the plaintiff was such

 2011:KER:5303

S.A.832/2000. 9

that immediate surgery had to be done and the first defendant,

who is a person with expertise in that field of medicine,

deliberately abstained from conducting surgery due to

extraneous reasons. It is also contended that at the time of

discharge, the plaintiff was still suffering from her illness and

she had soon thereafter to go to another hospital where she

underwent surgery. First defendant was well aware of the fact

that surgery was the only remedy for the illness of the plaintiff,

but he abstained from performinga surgery due to extraneous

considerations. It is also pointed out that both the courts

below were concurrently found that the first defendant has

been negligent. Being a question of fact, no interference is

called for in Second Appeal.

10. Merely because this court is sitting in Second

Appeal, it does not mean that this court is precluded from

considering the evidence in the case to see that the finding

of the courts below suffers from gross illegality and injustice.

Learned counsel for the appellant took this court through

 2011:KER:5303

S.A.832/2000. 10

the entire evidence adduced in the case and contended that

the finding of the courts below that the first defendant was

negligent cannot be sustained.

11. At the outset itself, it must be said that there

is considerable force in the above submission. That theplaintiff

was admitted in the General Hospital on 26.6.1995is a matter

not in dispute. It is also not in dispute that the first defendant

had attended to her on the same day. The evidence discloses

that the plaintiff had intussusception, which means 'the

enfolding of one segment of the intestine within another'.

Learned counsel appearing for the respondent would contend

that in such cases the onlyremedy is to subject the patient to

surgery and the course adopted by the first defendant cannot

be appreciated. The above contention does not appear to be

correct.

12. One may in this regard refer to the evidence

of the doctors examined by the plaintiff herself.

13. P.W.4 was a doctor in the Medical Centre

Hospital at the relevant time. He deposed that on

 2011:KER:5303

S.A.832/2000. 11

18.7.1995 the plaintiff was admitted in the hospital. He said

that on examining the X-Ray taken, he did not find anyproblem

with the large intestine. He then speaks about the various

modes of investigation adopted in such cases. Hefinally says

that he only examined the patient to ensure the physical

fitness of the patient to undergo surgery.

14. P.W.6 was a Gastro intestinal surgeon

attached to Medical Centre Hospital. He speaks about the

operation conducted on the patient on 19.7.1995. He would

say that she was suffering from Jejunial intussusception. Itis

significant to notice that in chief examination itself this

witness had stated that it was only on opening of the abdomen

it was diagnosed as Jejunial intussusception. It is also equally

important to notice that even if the patient suffers from acute

intussusception, it is not necessary that surgery should be

immediately conducted. The doctor would specifically

depose that surgery is not the only modeof treatment in such

cases. The patient can be asked not to take food including

water and put the patient on I.V. It is

 2011:KER:5303

S.A.832/2000. 12

possible that there may be spontaneous reduction. He

speaks about other modes of treatment also. In cross

examination this witness has stated that Jejunial

intussusception is a very rare phenomenon. He would also

depose that on conservative treatment if the obstruction in

the intestine gets removed, then surgery may not be

necessary at all. Even if the patient responds to the

conservative method of treatment, the patient will not be

discharged immediately and kept under observation for a

while.

15. P.W.7 is yet another doctor attached to the

Medical Centre Hospital. He is a surgeon. He would depose that

at the time of admission of the patient they suspected

intestinal intussusception. He also deposed that the patient

was having similar symptoms for the last 3 or 4 years. After

going through the records of the General Hospital, where the

patient had undergone treatment, they were not able to come

to a definite conclusion regarding her ailment. He however

deposed that in the General Hospital all required

 2011:KER:5303

S.A.832/2000. 13

tests were done. He would say that immediately the patient

was put on conservative treatment. But they found no

improvement on the next day and therefore they decided to

conduct a laproscopy. When they did that, they detected a

fairly large lump in the intestine. When they found it, they

could not reduce it though laproscopy, they decided to open

the abdomen. Only when they opened the abdomen and

investigated they found that the patient was suffering

intussusception. After operation, the patient recovered

without much complication. Through this witness, the records

of the Medical Centre Hospital were marked.

16. What is significant about the evidence of this

witness is that in chief examination itself he says that as

soon as intestinal intussusception is detected, it is not

necessary to go in for a surgery. The usual practice followed

is to adopt conservative method of treatment and if the

condition of the patient does not improve, then go in for

operation. In several cases on conservative treatment the

patient's condition improve, otherwise the patient would be

 2011:KER:5303

S.A.832/2000. 14

subjected to surgery. Even if the patient shows improvement,

P.W.7 would say that the patient is kept under observation for

a few days.

17. P.W.8 is an independent witness, who speaks

about having gone along with P.W.2 to the doctor to give

money. His evidence is not of much relevance.

18. D.W.1 is the first defendant, who had

attended to the patient when she had gone to the General

Hospital. At the relevant time he was functioning as the

Surgeon in the General Hospital. He speaks about the

treatment given to the patient by him and says that since

the patient showed considerable improvement, then put on

conservative method of treatment. He discharged the patient

on 11.7.1995. He would also depose that at the time of

discharge, the patient was cautioned that in case of any illness

the patient should at once come and meet him. He would say

that after discharge, the patient had never returned to him.

The witness would maintain that if on adopting conservative

method of treatment, the condition of

 2011:KER:5303

S.A.832/2000. 15

the patient does not improve, then alone surgery is resorted

to. In the case on hand, he would say that the plaintiff

responded to the conservative method of treatment and

therefore he did not feel it necessary to subject the patient

to a surgery.

19. Ext.X1 is the file maintained in the General

Hospital and Ext.X2 is the file maintained in the Medical Centre

Hospital.

20. Before going into the evidence relating to the

negligence on the part of the doctor, it will be useful to refer

to the law on the point. The law of negligence regarding

professional has undergone considerable changein recent

times. The law of which was initially reluctant to attribute

negligence to professional men, has now developed will laid

principles to judge the standard of care and caution to be

exercised by a professional. As far as medical profession is

concerned, the law laid down in Bolam

v. Froern Hospital Management Committee ((1957) 2

 2011:KER:5303

S.A.832/2000. 16

All ER 118) is considered to be the locus classica in the field.

In the said decision it was held as follows:

“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 particular
art. In the case of a medical man, negligence means
failure to act in accordance with the standards of
reasonably competent medical men at the time.
There may be one or more perfectly proper
standards, and if he conforms with one of these
proper standards, then he is not negligent.”

The above principle continues to be the law even now.

21. A doctor's liability to patient arises both under

tort and in contract. The question often arises as to what is

the degree of care and caution that is expected of a doctor.

Lord Denning in The Discipline of Law at page 243 states as

follows:
 2011:KER:5303

S.A.832/2000. 17

“You should only find him guilty of negligence

when he falls short of the standard of a reasonably
skilful medical man, in short, when he is deserving
of censure -- for negligence in a medical man is
deserving of censure.”

It is further stated:

“But so far as the law is concerned, it does not

condemn the doctor when he only does that which
may a wise and good doctor so placed would do.
It only condemns him when he falls short of the
accepted standards of a great profession; in short,
when he is deserving of censure.”

22. Salmond and Heuston on the Law of Torts

Eighteenth Edition at page 215 observes thus:

“It is expected of such a professional manthat

he should show a fair, reasonable and competent
degree of skill; it is not required thathe should
use the highest degree of skill, for there may be
persons who have higher education and greater
advantages than he has, nor will he be held to have
guaranteed a cure. So a barrister is
 2011:KER:5303

S.A.832/2000. 18

not expected to be right: it is enough that he

exercises reasonable care. So a medical
practitioner should not be found negligent simply
because one of the risks inherent in an operation
of the kind occurs, or because in a matter of opinion
he made an error of judgment, or because he has
failed to warn the patient of every risk involved in
a proposed course of treatment. There is no rule
that a doctor must tell a patient what is the matter
with him.”

23. In the decision reported in Antonio Dias v.

Frederick Augustus (AIR 1936 PC 154) it was held as follows:

“Where a suit is filed for damages against a

doctor, the onus of proof is upon the plaintiff, and
if he is to succeed he must demonstrate, beyond
reasonable doubt, that the defendant was
negligent, and that his negligence caused the injury
of which the plaintiff complains.”

24. In the decision reported in Poonam Verma

v. Ashwin Patel (AIR 1996 SC 2111) it was held as follows:

 2011:KER:5303

S.A.832/2000. 19

“The breach of duty may be occasioned

either by not doing something which a reasonable
man, under a given set of circumstances would
do, or, by doing some act which a reasonable
prudent man would not do.”

25. According to Halsbury's Laws of England, 4th

Edn., Vol.26 pp.17-18, the definition of negligence is as under:

“22. Negligence.- Duties owed to patient. A

person who holds himself out as ready to give
medical advice or treatment impliedly undertakes
that he is possessed of skill and knowledge for the
purpose. Such a person, whether he is aregistered
medical practitioner or not, who isconsulted by a
patient, owes him certain duties, namely, a duty of
care in deciding whether toundertake the case; a
duty of care in deciding what treatment to give;
and a duty of care in his administration of that
treatment. A breach of any of these duties will
support an action for negligence by the patient.”
 2011:KER:5303

S.A.832/2000. 20

26. In the decision reported in Jacob Mathew v.

State of Punjab (2005(3) K.L.T. 965(SC), which has

considered the matter in detail following the principle laid

down in Bolam's case held as follows:

“We sum up our conclusions as under:-

(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 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 components of negligence are
three: ‘duty’, ‘breach’ and ‘resulting damage’.

(2) Negligence in the context of medical

profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the
 2011:KER:5303

S.A.832/2000. 21

part of a professional, in 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 follows a practice acceptableto
the medical profession of that day, he cannot be
held liable for negligence merely because abetter
alternative course or method of treatment was also
available or simply because a more skilled doctor
would not have chosen to follow or resort to that
practice or procedure which theaccused 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
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 in the light of
knowledge available at the time of the incident, and
not at the date of trial. Similarly,when the charge
of negligence arises out of failure
 2011:KER:5303

S.A.832/2000. 22

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.

(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 thegiven case, the
skill which he did possess. The standard to be
applied for judging, whether the person charged
has been negligent or not, wouldbe 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 may be possessed of
better qualities, but thatcannot be made the basis
or the yardstick for judging the performance of the
professional proceeded against on indictment of
negligence.

(4) The test for determining medical negligence

 2011:KER:5303

S.A.832/2000. 23

as laid down in Bolam’s case [1957] 1 W.L.R. 582,

586 holds good in its applicability in India.

(5) The jurisprudential concept of negligence

differs in civil and criminal law. What may be
negligence in civil law may not necessarily be
negligence in criminal law. For negligence to
amount to an offence, the element of mens rea
must be shown to exist. For an act to amount to
criminal negligence, the degree of negligence
should be much higher i.e. gross or of a very high
degree. Negligence which is neither gross nor of a
higher degree may provide a ground for action in
civil law but cannot form the basis for prosecution.

(6) The word ‘gross’ has not been used in S. 304A

of IPC, yet it is settled that in criminal law
negligence or recklessness, to be so held, must be
of such a high degree as to be ‘gross’. The
expression ‘rash or negligent act’ as occurring in
Section 304A of the IPC has to be read as qualified
by the word ‘grossly’.

(7) To prosecute a medical professional for

negligence under criminal law it must be shown
 2011:KER:5303

S.A.832/2000. 24

that the accused did something or failed to do

something which in the given facts and
circumstances no medical professional in his
ordinary senses and prudence would have done or
failed to do. The hazard taken by the accuseddoctor
should be of such a nature that the injury which
resulted was most likely imminent.

(8 Res ipsa loquitur is only a rule of evidence and

operates in the domain of civil law specially in cases
of torts and helps in determining the onus of proof
in actions relating to negligence. It cannot be
pressed in service for determining per se the
liability for negligence within the domain of
criminal law. Res ipsa loquitur has, if at all, a
limited application in trial on a charge of criminal
negligence.”

27. In the decision reported in INS. Malhotra

(Ms) v. Dr.A.Kriplani ((2009) 4 SCC 705) it was held as

follows:

"Negligence in the context of the medical

profession necessarily calls for a treatment with a
difference. To infer rashness or
 2011:KER:5303

S.A.832/2000. 25

negligence on the part of a professional negligence.

A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of
a medicalrofessional. so long as a doctor follows
apractice acceptble to the medical profession of
that day, he cannot be held liable for negligence
merely because a better alternative course or
method of treatment wasalso available or simply
because a more skilled doctor would not have
chosen to follow or resort to that practice
orprocedure which the accused followed. The
classical statement of law in Bolamcase, has been
widely accepted as decisive of the sandard of care
required both of professional men generally and
medical practitioners in particular, and holds good
in its applicability in India. In tort,it is enough for
the defendant to show that the standard of care and
the skill attained was that of the ordinary
competent medical practitioner exercising an
ordinary degree of professional skill. the fct that a
defendant charged with negligence acted in accord
with the general and approvedpractice is enough to
clear him of the charge. It is not necessary for every
professional to possess the highest level of
expertise in that branch which
 2011:KER:5303

S.A.832/2000. 26

which he practises. Three things are pertinent to be

noted. Firstly, the standard of care, whenassessing
the practce as adopted, is judged in the light of
knowledge available at the time of the incident, and
not at the date of trial. Secondly, when the charge
of negligence arises out of failure touse some
particular equipment, the charge would fail if the
equipment was not generally available at that oint
of time (that is, the time of the incident) on which
it is suggested as should have been used. Thirdly,
when it comes to the failure of taking precautions,
what has to be seenis whether those precautions
were taken whichthe ordinary experience of men
has found to be sufficient; a failure to use special
or extraordinary precautions which might have
prevented the particular happening cannot be the
standard for judging the alleged negligence.
In State of Punjab v. Shiv Rama three- Judge
Bench of this court while dealing with the case of
medical negligence by the doctor in conducting
sterilization operations, reiterated and reaffirmed
that unless negligence of doctor is established, the
primary liability cannot be fastened onthe medical
practitioner. In paragraph 6of hejudgment it is
 2011:KER:5303

S.A.832/2000. 27

stated:
"6. Very recently, this Court has dealth with
the issues ofmedical negligence and laid down
principles on which the liability of a medical
professional is determined generally and in thefield
of criminal law in particular. Reference may be had
to Jacob Mathew v. State of Punjab. The Court has
approved the test as laid downin Bolam
v. Friern Hospital Management committee popularly
known as Bolam test, in its applicability to India."

28. In the decision reported in Kusum Sharma

v. Batra Hospital and Medical Research Centre (AIR 2010

SC 1050) it was held as follows:

"It is a matter of common knowledge thatafter

happening of some unfortunate event, there is a
marked tendency to look for a human factor to
blame for an untoward event, a tendency which is
closely linked with the desire to punish. things have
gone wrong and, therefore, somebody must be
found to answer forit. A professinal deserves total
protection. The Indian Penal Code has taken care to
ensure that people who act in good faith
 2011:KER:5303

S.A.832/2000. 28

should not be punished. Sections 88, 92 and 370

of the Indian Penal code give adequate protection
to the professional and particularly medical
professionals.
On scrutiny of the leading cases of medical
negligence both in our country and other countries
especially United Kingdom, some basic principles
emerge in dealing with the cases of medical
negligence. While deciding whether the medical
professional is guilty of medical negligence
following well known principles must be kept in
view:-
I. Negligence is the breach of a duty
exercised by omission to do something which a
reasonable man, guided by those considerations
which ordinarly regulate the conduct of human
affairs, would do, or doing something which a
prudent and reasonable man would not do.
II. Negligence is an essential ingredient of the
offence. The negligence to be established bythe
prosecution must be culpable or gross and not the
negligence merely based upon an error of judgment.
III. The medical professional is expected to
bring a reasonable degree of skill and knowledge
 2011:KER:5303

S.A.832/2000. 29

and must exercise a reasonable degree of care.

Neither the very highest nor a very low degree of
care and competence judged in the light of the
particular circumstance of each case is what the
law requires.
IV. A medical practitiner would be liable only
where his conduct fell below that of the standards of
a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment
there is scope for genuine difference of opinion and
one professional doctor is clearly not negligent
merely because his conclusion differs from that of
other professional doctor.
VI. The medical professional is often called
upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as
providing greater chances of success for the patient
rather than a procedure involving lesser risk but
higher chances of failure. Just because a
professional looking to the gravity of illness has
taken higher element of risk to redeem the patient
out of his/her suffering which did not yield the
desired result may not amount to negligence.
VII. Negligence cannot be attributed to a
doctor so long as he performs his duties with
 2011:KER:5303

S.A.832/2000. 30

reasonable skill and competence. Merely because

the doctor chooses one course of action in
preference to the other one available, he would not
be liable if the course of action chosen by him was
acceptable to the medical profession.
VIII. It would not be conclusive to the
efficiency ofthe medical profession if no Doctor
could administer medicine without a halter round
his neck.
IX. It is our bounden duty and obligation of
the civil society to ensure that the medical
professionals are not unnecessary harassed or
humiliated so that they can perform their
professional duties without fear and apprehension.
X. the medical practioners at times also have
to be saved from such a class of complainantswho
use criminal process as a tool for pressurizing the
medical professionals/hospitals particularly
private hositals or clinics for extracting uncalled for
compensation. Such malicious proceedings deserve
to be discarded against the medical practitioners.
XI. The medical professionals are entitled to
get protection so long as they perform their duties
with reasonable skill and competence and in
 2011:KER:5303

S.A.832/2000. 31

theinterest of the patients. The interest and

welfare of the patients have to be paramount for
the medical professinals.:

29. In the decision reported in Malay Kumar

Ganguly v. Sukumar Mukherjee (AIR 2010 SC 1162) it was

held as follows:

"Charge of professional negligence on a

medical person is a serious one as it affects his
professional status and reputation and as such the
burden of proof would be more onerous. A doctor
cannot be held negligent only because something
has gone wrong. He also cannot be held liable for
mischane or misadventure or for an error of
judgment in making a choice when two options are
available. The mistake of diagnosis is not
necessarily a negligent diagnosis is not necessarily
a negligent diagnosis.
Even under the law of tort a medical
practitioner can only be held liable in respect of an
erroneous diagnosis if his error is so palpably wrong
as to prove by itself that it was negligently arrived
at or it was the product of absence ofreasonable
skill and care on his part regard being
 2011:KER:5303

S.A.832/2000. 32

held to the ordinary level of skill in the profession.

For fastrning criminal liability very high degree of
such negligence is required to be proved.
Death is the ultimate result of all serious
ailments and the doctors are there tosave the
victims from such ailments. Experience and
expertise of a doctor are utilized for the recovery.
But it is not expected that in case of all ailments
the doctor can give guarantee of cure."

30. In the decision reported in Kusum Sharma

v. Batra Hospital and Medical Research Centre (2010)

3 SCC 480) it was held as follows:

"In a celebrated and oft cited judgment in

Bolam v. Friern Hospital Management Committee
(Queen's Bench Division) McNair ,L.J. observed:
(i) a doctor is not negligent, if he is acting in
accordance with a practice accepted as proper by
a reasonable body of medical men skilled in that
particular art, merelybecause there is a body of
such opinion that takes a contrary view.
"The direction that, where there are two
different schools of medical practice, both having
recognition among practitioners, it is not negligent
for a practitioner to follow one in preference to the
 2011:KER:5303

S.A.832/2000. 33

other accords also with American law. Moreover,

it seems that by American law a failure to warn the
patient of damages of treatment is not, of itself,
negligence."
McNair, L.J. observed:
Before I turn to than, I must explain what in
law we mean by 'negligence'. In the ordinary case
which does not involve any special skill,
negligence in law means this: some failure to do
some act which a reasonable man in the
circumstances would do, or the doing of some act
which a reasonable man in the circumstances
would do, or the doing of some act which a
reasonable man in the circumstances would not
do; and if that failure or the doing of that act
results in injury, then there is a cause of action.
How do you test whether this act or failure is
negligent? In an ordinary case it is generally said,
that you judge that by the action of the man in the
street. He is the ordinary man. In one case it has
been said that you judge it by the conduct of the
man on the top of a clapham Omnibus. He is the
ordinaryman. But where you get a situation which
involved the use of some special skill or
competence, then the test as to whether there has
 2011:KER:5303

S.A.832/2000. 34

been negligence or not is not the test of the man

on the top of a Clapham Omnibus, because he has
not got this man exercising and professing to have
that special skill.... A man need not possess the
highest expert skill at the risk of being found
negligent. It is well-established law that it is
sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular
art.
In Chin Keow v. Govt. of Malaysia the Privy
Council applied these words of McNair, L.J. in Bolam
v. Friern Hospital Management Committee.
".........where you get a situation which
involves the use of some special skill or competence,
then the test as to whether there has been
negligence ornot is not the test of the manon the
top of a Clapham Omnibus, because he has not got
this special skill. The test is the standard of the
ordinary skilled man exercising and professing to
have that special skill."

(See the decisions reported in Marghesh K. Parikh

(minor) v. Dr. Mayur H.Mehta ((2011) 1 SCC 31) and

V.N. Shrikhande (Dr.) v. Anita Sena Fernandes ((2011)

1 SCC 53)).
 2011:KER:5303

S.A.832/2000. 35

31. A perusal of the above decisions shows that

attributing negligence to a medical personnel is indeed a

serious affair and as it affects his professional status and

reputation. In such cases, according to the variousdecisions,

the burden of proof is very high. Merely because the patient

has not been cured or something has gone wrong, the medical

officer cannot be held liable in tort. He may make an error in

the choice of two options and every error in diagnosis need

not be a negligent one. His act has to be such that it is

palpably wrong and contrary to the medical standards and

procedures usually adopted in such cases. A high degree of

negligence is usually insisted in such cases.

32. Before going further into the matter, it will be

useful to understand what exactly was the ailment of the

plaintiff. At the time of admission in the General Hospital, the

first defendant did suspect a lump in the stomach. But the

evidence given by the witnesses examined by the

 2011:KER:5303

S.A.832/2000. 36

plaintiff herself show that it is not easy to detect

intussusception. In fact the evidence of one of the surgeons

would indicate that they were able to confirm intussusception

when they infact opened her abdomen.

33. Intussusception occurs when part of the bowel

or intestine is wrapped around itself producing a masslike

object on the right side of the abdomen during palpation.

The major symptom of intussusception is vomiting and

severe abdominal pain. There may be nausea and diarrhea

and occasionally the patient may develop fever. Once

intussusception is suspected, barium enema is resorted to.

It is well accepted in medical field that even when

intussusception is detected, it is not necessary to subject

the patient to a surgery immediately. The usual procedure

that is followed is conservative method of treatment and

then the medical officer waits to see if the patient responds

to such treatment. If the patient does respond to that

treatment, and intussusception gets reduced, then the

patient is kept under observation for a few days. The initial

 2011:KER:5303

S.A.832/2000. 37

methods of treatment adopted are to stop oral feeding and

to put the patient on I.V. From the evidence available on

record, it is almost clear that surgery is the last option and

not the first one. Of course, it also depends upon the

intensity of the disease. If intussusception ailment persists,

the possibility of intestinal gangrene, shock and death

increases.

34. The courts below have mainly been

influenced by the inconsistency in the evidence of D.W.1

and the entries in Ext.X1 record. Certainly there are some

conspicuous and significant differences and inconsistencies.

But the question is whether that by itself is sufficient to fasten

liability on the first defendant.

35. Here one has to notice the evidence of the

first defendant. His definite stand was that he had

suspected intussusception and as the normal procedure he

resorted to conservative method of treatment. He would say

that the patient responded to the treatment and therefore

he postponed the surgery. There is evidence in

 2011:KER:5303

S.A.832/2000. 38

this case to show that the patient responded to barium enema

and also that she had taken oral food few days after the

admission. While the plaintiff would maintain that she

continued to vomit and had severe abdomen pain, the first

defendant would say that she showed marked improvement

in her condition. What D.W.1 says can be found to be true from

the entries in Ext.X1. Of course there is some incongruity

regarding the directions given by the first defendant and the

steps taken by the nursing staff. The statement of the first

defendant as D.W.1 that he did not care to look into that

aspect may not be commendable. But that is far from saying

that he was negligent.

36. Learned counsel appearing for the

respondents in this appeal stressed that the moment when it

was suspected that the patient was having intussusception,

she should have been subjected to surgery. The further

contention is that if as a matter of fact after admission on

26.6.1995 if the patient responded to the treatment next two

or three days, there was no necessity to

 2011:KER:5303

S.A.832/2000. 39

retain her in the hospital. Emphasis was also laid on the

plaintiff undergoing further tests on 1st, 4th and 8th July,

1995. It was very vehemently contended that if what D.W.1

says is true, it was unnecessary to conduct these tests and

that shows that the condition had never improved.

37. Learned counsel for the first respondent

seems to have omitted to notice the evidence furnished by

witnesses from the side of the plaintiff. Before going into that

aspect, one fact may be noticed. After discharge from the

General Hospital and before going to the Medical Centre

Hospital, the plaintiff had met a doctor attached to P.S.Clinic,

which is near her house. She was dischargedfrom the General

Hospital on 11.7.1995. D.W.1 categorically says that at the

time of discharge she was cautioned that if the symptoms

return, she would meet him immediately. Nobody has a case

that she ever went back to General Hospital. On 13.7.1995 it

seems that the plaintiff had gone to the Clinic run by P.W.5.

She would say that she had advised the plaintiff to go to a well

equipped hospital. P.W.5

 2011:KER:5303

S.A.832/2000. 40

says that she gave an injunction to the patient and the patient

went back to her house. In cross examination, this witness

would say that between 13.7.1995 and 18.7.1995 when the

patient came back with the same complaint, according to her,

the patient was on normal diet.

38. Both the plaintiff and P.W.3, her husband,

have a case that for two reasons the first defendant was

negligent in the treatment of the plaintiff. One is that P.W.3,

the husband of the plaintiff had complained to the Minister,

who had visited the hospital, about the nature of the building

and also someone else had complained that the first

defendant was insisting bribes for treating the patients.

P.Ws. 1 and 3 do say that they had paid amounts to the first

defendant, though the first defendant denies the same.

However, P.Ws.1 and 3 are gracious enough to say that the first

defendant never demanded any amount from them and the

payment made by them were voluntary payments.

 2011:KER:5303

S.A.832/2000. 41

39. The evidence of P.W.3 shows that even

though he says that the condition of her wife did not improve,

he does say that his wife was able to attend to her routine

affiars during the time while she was in the hospital. It is also

seen from his evidence that oral food was taken after a few

days under instructions from the medical staff. I am not

oblivious of his statement that even at the time of discharge,

his wife was suffering from the same illness. One may here also

refer to the evidence of P.W.1. P.W.1 says that when she

developed pain in the abdomen again on 13.7.1995, she had

gone to the Clinic run by P.W.5. She would say that on the

first occasion, i.e., on 13.7.1995 when she met P.W.5, she

gave her an injunction, but she did not ask P.W.1 to go to a

better hospital. This is contrary to the evidence furnished by

P.W.5, who categorically says that when the patient came to

her on 13.7.1995, she was advised to go and take better

treatment in a hospital which has more facilities. P.W.1 says

that on 13.7.1995 and 18.7.1995 when she went to P.S. Clinic,

she could not take

 2011:KER:5303

S.A.832/2000. 42

any food due to vomiting. One may here at once refer to

the evidence of P.W.5, who says that as per her diagnosis and

as per the information gathered from the patient, from

13.7.1995 to 18.7.995 P.W.1 was taking normal food. One may

again refer to the evidence of P.W.4. He would say that if

acute intussusception is detected in a patient, normally two

types of treatments are adopted, they are conservative

method and surgical method. He would also depose that

normally at first conservative method of treatment is adopted.

P.W.6, whose evidence has already been referred to, is a

surgeon attended to the Medical Centre Hospital. He has

categorically stated in his deposition that the remedy for

acute intussusception is not surgery alone. The first mode of

treatment is to instruct the patient not to take any food orally

including water. The doctor says that, that may bring about

spontaneous reduction of intussusception and he also says

about the various methods of treatment before surgery is

resorted to. His evidence discloses that it is extremely

difficult to diagnosis intussusception. It is in

 2011:KER:5303

S.A.832/2000. 43

this regard the evidence of P.W.7 needs to be appreciated. He

also says that on 18.7.1995 the plaintiff came to the hospital

with a complaint of vomiting and severe abdominal pain and

they had suspected something wrong with the intestine. He

would say that the patient was put on conservative method of

treatment. Only when they found that she did not respond to

that treatment, surgery wasdecided to conduct upon. It is also

significant to note that in chief examination this witness would

say that whey theyconducted laproscopy, they found a lump

in the stomach, but only when they opened and probed into it,

it was diagnosed as intussusception.

40. Thus, an analysis of the evidence will clearly

show that the mode of treatment adopted by the first

defendant initially is an accepted method even going by the

evidence furnished by the plaintiff herself. The contention

of the learned counsel for the respondent was that on the

very same day of admission and on the very next day of

admission, patient was put on I.V, that is not the accepted

 2011:KER:5303

S.A.832/2000. 44

mode of treatment in case acute intussusception is initially

diagnosed. The uniform opinion of all the doctors examined

is that, first the medical officer concerned resorts to

conservative method of treatment and only if the patient

does not respond to the same and develop further

complications, surgery is resorted to. In other words,surgery

is the last option and not the first one as contendedby the

learned counsel for the first respondent.

41. One need not disbelieve the first defendant

when he says that on 11.7.1995 when the plaintiff was

discharged, her condition had considerably improved. If asa

matter of fact what is claimed by the plaintiff and her

husband P.W.3 is correct, certainly, it would have been

difficult for her to survive for 2 or more days in General

Hospital. It is to be noticed that she had in the General

Hospital for 11 days. Therefore most of the submissions

made by P.Ws.1 and 3 can be taken only with a pinch of salt.

42. May be that the first defendant was slightly

indifferent. But that by itself does not lead to the conclusion

 2011:KER:5303

S.A.832/2000. 45

that he was negligent. As noticed in several decisions, the

standard of proof is very high in case of medical negligence.

The evidence does not disclose that the treatment adopted

by the first defendant in the case of the plaintiff was not an

accepted mode of treatment. In fact the evidence is to the

contrary. The initial treatment given to P.W.1, which is known

as conservative method of treatment is one usually resorted to

in all such case. The evidence is clear to the effect that option

of surgery is the last resort when thepatient does not show any

improvement after receiving conservative method of

treatment and begins to develop more and more

complications. Applying the above test and principle to the

facts of the case on hand, it therefore follows that the

plaintiff has miserably failed to establish that the first

defendant was negligent in any manner.

43. At the time of hearing of the appeal, this court

was given to understand that the decree has been executed

and the plaintiff has realised the amount decreed by the

trial court and as confirmed by the appellate court.

 2011:KER:5303

S.A.832/2000. 46

Considering the facts and circumstances, it is directed that

in case the plaintiff had realized the amount, it shall not be

recovered from the plaintiff. But it is held that the courts

below were not justified in holding that the first defendant

was negligent in the treatment of the plaintiff.

In the result, this appeal is allowed, the judgments

and decrees of the courts below are set aside and the suit

stands dismissed. There will be no order as to costs.

P. BHAVADASAN,
JUDGE
sb.
66 QUEEN' S BENC H DIVISION . [ 1 9 5 4 ]

C. A. but was entitled to refer as a " d i s p u t e , " and which the tribunal
195 4 can properly hear and determine as such.
I am accordingly in agreement with my brethren, though for
E IN A
° somewhat different reasons, in thinking that this appeal should be
INDUSTRIAL allowed.
T Z I Appeal allowed.
Ex parte Leave to appeal to House of Lords refused.
TBCHNALOY
LD .
Solicitors: W. H. Thompson; Hardman, Phillips & Mann;
Solicitor, Ministry of Labour.
A. W. G.

1953 EO E v. MINISTE E OF HEALT H AND ANOTHER.

Oct. 19, 20,
21, 22, 23, W OOL L E Y v. SAME.
26, 27, 28,
29, 30, 31;
Nov. 2, 3, [1949 R. No. 3784.]
4 12
' " [1948 W. No. 3792.]
McNair J.
Negligence—Onus of proof—lies ipsa loquitur—Operation under control
C. A. of two persons—Hospital—Anaesthetist—Operations—Injection of
spinal anaesthetic—Ampoule cracked—Contamination by phenol—
Mar 22 23 Plaintiffs permanently paralysed — Liability of hospital for. acts 24,
25 ; of specialist anaesthetist — Mespondeat superior — Liability ofAp.
8. anaesthetist.
Somervell Hospital—'■Negligence. Vicarious Liability. Causation. Damages— Denning
and Bemoteness. Negligence—Duty of care.
Two patients in hospital were operated on on the same day. Both
operations were of a minor character, and in each case nuper- caine, a
spinal' anaesthetic, was injected by means of a lumbar puncture by a
specialist anaesthetist assisted by the theatre staff of the hospital. The
nupercaine had been contained in sealed glass ampoules which had been
stored in a solution of phenol. After the operations both patients
developed severe symptoms of spastic paraplegia, caused by phenol, which
had percolated into the ampoules through invisible cracks or molecular flaws,
resulting in permanent paralysis from the waist down. Actions for
damages for personal injuries were brought by both of the patients
against the Minister of Health as successor in title to the trustees of
the hospital, and against the anaesthetist. The anaesthetist carried on a
private anaesthetic practice but was under an obligation, with another
anaesthetist, to provide a regular service for the hospital.
The trial judge found for the defendants. He rejected the con- tentions
of the plaintiffs that the doctrine res ipsa loquitur applied,
 67
2 Q.B. QUEEN'S BENCH DIVISION.

.and held that the hospital was not responsible for the acts of the 1953
anaesthetist, and that the plaintiffs' claims failed against both ~
defendants. On appeal:— „
Held, that the anaesthetist was the servant or agent of the MINISTER
hospital and the hospital were liable for his acts on the principle ° F HEALTH.
of respondeat superior.
Gold v. Essex County Council [1942] 2 KB . 293; 58 T.L.R.
357; [1942] 2 All E.R. 237 and Cassidy v. Ministry'of Health
[1951] 2 K.B. 343; [1951] 1 T.L.R. 539; [1951] 1 All E.R. 574
applied.
Held, further, that applying the test of what was the standard
of medical knowledge in 1947 in respect to the detection of the presence
of the phenol in the ampoules, at the time of the operations, neither the
anaesthetist nor any member of the hospital.staff had been guilty of
negligence, and the appeals failed.
Decision of McNair J. affirmed.

ACTIONS.
In consolidated actions the plaintiffs', Cecil Henry Eoe, a farm
labourer, aged 46, and Albert Woolley, a labourer, aged 51, claimed
damages for personal injuries which, they suffered as the result of the
administration to them of a spinal anaesthetic on October 13, 1947, at
the Chesterfield and North Derbyshire Eoyal Hospital. I n each case the
surgical operation for which they were anaesthetized was of a minor
character, but in each case, owing, as the trial judge found, to the
contamination of the anaesthetic by phenol, the patient developed a
condition of spastic paraplegia, which resulted in permanent paralysis
from the waist down. The contamination was found by the judge to
have been caused by the percolation of phenol (in which the glass
ampoules containing the anaesthetic were stored) through invisible
cracks or molecular flaws in the ampoules. In those circumstances
the plaintiffs claimed damages against the Minister of Health as
successor in title, under the National Health Service Act, 1946, and
the National Health Service (Appointed Day) Order, 1948, to the
trustees of the hospital, and also against Dr. J . Malcolm Graham, who
was responsible for the administration of the anaesthetic in each case.
The manufacturers of the anaesthetic, Ciba Labora- tories, Ld., were
joined as third defendants, but during the hearing were dismissed from
the case.

Both actions came before McNair J., who on November 12, 1953,
dismissed them and delivered the following judgment.
♦

MCNAI R J., having stated the facts, continued: The method of

anaesthesis employed was the well-known method of injecting
nupercaine into the patient' s theca by means of a lumbar puncture
68 QUEEN'S BENCH DIVISION. [1954 ]

1953 between the lumbar vertebrae. This method, at any rate in 1947
j{0B before the general development of the use of other relaxant drugs,
»• was widely used and had the advantage of securing by a simple
OF HEALTH, technique normally involving little distress to the patient a
complete relaxation in the field of the intended operation.
McNair J. ^
I desire to emphasize at the outset that no charge of negligence was
made based upon the adoption of this method of anaesthesis for the
two operations in question. At the hearing before me, which lasted
for eleven days, I had the advantage of hearing the evidence given by a
number of surgeons, neurologists, anaesthe- tists and pathologists of
the highest professional standing, who, while each desiring to assist
the court without any reservation, differed widely in many respects in
their views of the cause of the condition which developed in both
plaintiffs following upon the administration of the anaesthetic. I have
had accordingly a more than usually anxious task in attempting to
reach a solution.
[His lordship described the anatomy of the spinal column, stated
the facts as to the development of the disease in each case, reviewed the
evidence and continued: ] In these circumstances Mr Elwes as
counsel for the plaintiffs, emphasizing the close parallelism between the
two medical histories and the fact that injuries of this nature do not
normally follow from spinal anaes- thetics properly administered,
submits that the doctrine of res ipsa loquitur applies (a) as against
the hospital on the basis that in law the hospital is responsible for
the actions of Dr. Graham as well as for the actions of the theatre'
staff; (b) as against Dr. Graham on the ground that he administered
the anaesthetic and had control of the theatre staff in all revelant
respects.
The validity of this submission in my judgment depends on
determining (1) the extent of the obligation assumed by the hospital
towards patients received by the hospital; (2) the positionof Dr.
Graham in relation to the hospital; and (3) the extent, if any, of the
application of the doctrine of res ipsa loquitur where the offending
object or operation is under the control of two persons not in law
responsible for the acts of each other. [His Lordship then stated the
facts with regard to the qualifications and position of Dr. Graham *
and continued : ]
I now turn to (1), the problem of the obligation assumed by the
hospital towards patients received for treatment. The two most
relevant authorities, both of which are binding upon me, are the
decisions of the Court of Appeal in Gold v. Essex„County

* See post, p. 69.

 69
2 Q.B. QUEEN'S BENCH DIVISION.

Council1 and Cassidy v. Ministry of Health.2 I take as my 1953

guide the passage in the judgment of Lord Greene M.E. in Gold's u 0B
case 3 : " The question which presents itself in the present case «■
MlN IST PR
"may, therefore, be formulated as follows: when a patient OP HEALTH.
" seeking free advice and treatment such as that given to the
° McNair J.
" infant plaintiff knocks at the door of the defendant's hospital,
" what is he entitled to expect? . He will find an organization"
which comprises consulting physicians and surgeons, presum- "
ably also house physicians and surgeons, a staff of nurses, "
equipment for administering Grenz ray treatment and a radio-"
grapher, Mead, employed to give that treatment. So far as "
consulting physicians and surgeons are concerned, clearly the"
nature of their work and the relationship in which they stand"
to the defendants precludes the drawing of an inference that "
the defendants undertake responsibility for their negligent "
acts."
I also think it is clear that the judgments of Somervell and Singleton
L.JJ., who formed the majority on this point in Cassidy's case,4
proceed on the same basis. No useful purpose would be served by
my expressing my own views upon the judgment of Denning L.J. in
the latter case, which states the hospital's obligation in much wider
terms, except to say that there is in my judgment much force in
the criticism directed by Mr. Berryman against Denning L.J.'s reading
of the decision in Mersey Docks and Harbour Board v. Coggins and
Griffiths (Liverr pool) Ld.5 which apparently forms the basis of this
judgment.
1 accordingly conclude (1) that so far as Dr. Graham was con-
cerned, the hospital's obligation towards their patient was limited
to providing a competent anaesthetist, which obligation the
hospital undoubtedly fulfilled, and that the hospital was not
liable in law for his acts of negligence, if any; and that so far
as the theatre staff were concerned, the hospital assumed towards
their patients the vicarious responsibility of a master for his
servants. (2) It follows from what I have said above that in
my judgment the ■ position of Dr. Graham as a specialist
anaesthetist was comparable to that of a visiting surgeon or
physician for .whose acts the hospital does not assume responsi-
bility in law. As to (3) the extent of the application of the
doctrine of res ipsa loquitur where the thing or operation is under
i [1942] 2 K.B. 293; 58 T.L.K. * [1942] 2 K.B. 293, 302.
357; [1942] 2 All E.E. 237. * [1951] 2 K.B. 343.
2 [1951] 2 K.B. 343; [1951] 1 » [1947] A.C. 1; 62 T.L.K. 533;
T.E.B. 539; [1951] 1 All E.E. 574. [1946] 2 All E.B. 345.
70 QUEEN'S BENCH DIVISION. [ 1954 J

1953 the control of two persons not in law responsible for each other—
Eo B I am unable to understand how it can be said that the maxim can
»• apply to either of such persons, since the res, if it speaks of
OP HEALTH negligence, does not speak of negligence against either indi-
—- vidually: see the passage in Lord Murray's speech in Garruthers
TWpN*ifr T

' v. Macgregor." In this connexion reference should also be made to

the words of Farwell L.J. in Hillyer v. St. Bartholomew's Hospital,7
quoted by Somervell L.-J. in Cassidy's case.8
Furthermore, it was established on the evidence that, though the
anaesthetist is responsible for the choice of the anaesthetic, for the
giving of directions as to its preparation and for general supervision of
the activities of the theatre staff, he cannot properly be regarded
as responsible for their casual acts of negligence.
Accordingly, in my judgment the ordinary onus rests upon the
plaintiff of proving negligence against the hospital or Dr. Graham. It
being conceded that the injection of nupercaine per se was on the
facts of this case not negligent, and it being clearly established on the
medical evidence that the injuries were not caused (1) by an infective
organism, as in Voller v. Portsmouth Corporation,9 or (2) by traumatic
injury to the spinal column by the needle itself, and no other
contaminant than phenol being suggested, the first step in this proof
of negligence must be to satisfy the court that the injuries were in
fact caused by the injection of phenol.
None of the medical witnesses had consciously ever seen the results
of injecting phenol into the human theca, Accordingly, the
arguments for and against this view had necessarily to be based
largely on deductive reasoning from the observed effects of phenol in
other circumstances and the known effects of other toxic substances
on the contents of the theca itself. After the most anxious
consideration I have come to the conclusion that the phenol theory
is sufficiently established for it to form the basis of a finding by
the court that the injuries were in fact caused by the injection of
phenol with the nupercaine, and I so find.
[His Lordship then considered the allegations of negligence seriatim
and held (1) that on the standard of medical knowledge to be
imputed to a competent anaesthetist in 1947 Dr. Graham was not
negligent in failing to appreciate the risk of phenol
• 1927 S.C. 816, 823. » [1951] 2 K.B. 343, 351,
' [1909] 2 K.B. 820, 827; 25 » (1947) 203 L.T.J. 264.
T.L.E. 762.
2 Q.B. QUEEN'S BENCH DIVISION. 71

percolating into the ampoules of nupercaine through " invisible 1953

cracks" or molecular flaws in the glass; (2) applying the test j ^ ~
laid down by Lord Wright in Caswell v. Powell Duffryn Associated »•
Collieries Ld.,10 there were no positive proved facts from which op HEAI/TH
an inference as to the amount of phenol which percolated could
be drawn;1 (3) that on the evidence it would be impossible to c

infer that the percolation could have taken place through visible
cracks, and accordingly, if on proof of damage by phenol the
burden shifted to Dr. Graham to displace the implication of
negligence he had successfully discharged the burden by showing
that phenol in a significant quantity could . percolate into an ampoule
otherwise than by visible cracks, and remain undetected without
negligence on his part; and (4) Dr. Graham was not negligent on the
standard of a reasonably competent anaesthetist in 1947 in failing
i to adopt a colour technique which might have disclosed the
presence of a risk which he did not, in common with many other
competent anaesthetists, appreciate as a possibility.]
As regards the hospital his Lordship held that the cracks in the
ampoules, if any, could not reasonably be attributed to negligence on
the part of the theatre staff. In the result he dismissed both actions.
The plaintiffs appealed.
c A
Richard Elwes Q.C. and John Hobson for the plaintiffs. - -
The obligation assumed by the hospital authority towards its 1954
patients is to provide the necessary treatment: Gold v. ■ Essex T
1
County Council. In this case the hospital authority was under o.
a duty to provide both surgical and ancillary treatment. On the MINISTER
basis of Denning L.J.'s judgment in Cassidy v. Ministry of Health
2
it is no defence for a hospital to allege that its failure to carry
but its obligations was due to the act of a person for whom the
hospital was not answerable in law on the basis of respondeat superior.
If that is putting it too high, then it is submitted that this is a case of
vicarious liability, the hospital authority being responsible for negligent
acts proved to have been committed by its servants. On the basis of
Somervell and Singleton L.JJ.' s judgments in Cassidy's case,2
Dr. Graham was a servant of the hospital authority. It is clear from
the facts

i° [1940] A.C. 152, 169; 55 T.L.B. 2 [1951] 2 K.B. 343; [1951] 1

1004. T.L.B. 539; [1951] 1 All E.R. 574.
1 [1942] 2 K.B. 293; 58 T.L.R.
357; [1942] 2 All E.B. 237.
72
QUEEN'S BENCH DIVISION. [1954 ]
C A. of this case that he was employed under a contract of service and
1954 not under a contract for services. He was employed with Dr.
~ Pooler to provide a complete service of anaesthesia every day
„. throughout the year for both ordinary and emergency cases.
MINISTER The hospital obviously set out to provide for the day-to-day
' necessities of the hospital. There is no great difference between
engaging an anaesthetist to administer anaesthetics and employ-
ing a nurse or a house surgeon. Therefore, whether the test is
that applied by Denning L.J. or that by Somervell and Singleton
L. JJ. the hospital still remains liable in law for his negligent acts.
Dr. Graham's duty was to administer anaesthetics with skill
and care, to choose a system of asepsis and to be responsible
generally for its working supervision. He also had a duty to
ensure that the system was safe. To succeed in their claims the
plaintiffs must prove that their injuries resulted from a breach
of one or more of these obligations.
Eeliance is placed on the maxim res ipsa loquitur, and it is submitted
that it arises on the facts of this case. The injuries which the
plaintiffs suffered do not normally result from a spinal injection. The
injuries were exceptionally grave. The injuries happened on the same
day and in the same way. No circum- stances could call more
clearly for explanation. Ees ipsa loquitur applies equally against
both defendants. Assuming that Dr. Graham was the servant of the
hospital, the hospital was in control of all relevant activities.
Assuming that Dr. Graham was not a servant, the maxim applies
against him because he administered the anaesthetic, was responsible
for the asceptic technique and was, therefore, in control of
everything which could have caused the injuries. The onus is on
him to show that the injuries were not the result of his negligence. The
trial judge rejected the contention that the maxim is applicable.
He did so on the basis that it could never be applicable when the
matter in question was under the control of two defendants who, as
he found, were not mutually responsible for each other.
The reported cases in which the maxim res ipsa loquitur has been
invoked are not of assistance except in so far as they provide
guidance to the court as to the circumstances in which this
presumption of fact will arise and the escape therefrom, which is
emphasized in Ballard v. North British Bailivay.3 In the past the
courts have relied a good deal on the fact that whena patient is
lying unconscious in an operating theatre the doctors
3
1923 S.C.(H.L.) 43.
 7 3
2 Q.B. ' QUEEN'S BENCH DIVISION.

and nurses have been in command of the situation. If something U. A-

goes wrong they ought to explain why it has gone wrong, and the 1954
onus is on them to prove that the injury did not result from the ~-
negligent performance of some act or the negligent omission of „.
some act. In this case the onus lies equally on both defendants MINISTER
, . ,
m
. , OF HEALTH.
to prove that they have not been negligent. The judge found
that the injuries were caused by phenol, and that finding is nofc now
contested. It is, therefore, for those in control of the situa- tion to
prove that phenol could get into the theca without negligence on
their part. If they do that the onus is thrown back on the plaintiffs
to prove negligence. If the circumstances are such that it is open
to the plaintiff to invoke the maxim, and he calls evidence to support
his case, the proper task of the court is to consider whether or not
the defendants, by their evidence, have discharged the onus cast upon
them.
[SOMERVELL L.J. I would have thought that the question was
one of the balance of probability. Have you any authority on
which you base your res ipsa loquitur submission?]
[Counsel cited Baker v. Market Harborough Industrial Co-
operative Society 4 and Mahon v. Osborne.5] In the latter case
MacKinnon and Goddard L.JJ. held that the maxim applied. Scott
L.tf. dissented, but, it is submitted, he did so because of the
uncertainty as to whether the surgeon or the nurse was negligent.
Montague Berryman Q.C., R. Marven Everett Q:C. and
J. S. Macaskie for the Minister of Health. The maxim res ipsa loquitur
does not apply in the present case. The judge heard the evidence
of medical men, chemists and scientists and the findings which he
came to are findings of fact. In the court below it was contended
that whatever else had done the mischief it was not phenol, but
in the result, although nobody was prepared to be very dogmatic, the
judge resolved, on the proba- bilities of the matter, that it was the
phenol which had seeped into the ampoules through molecular or
invisible cracks. It would not be right to invite this court to
upset that finding. The judge also found that there was no negligence
proved against the hospital staff, and it is submitted that it was the
right conclusion. Putting aside for a moment the legal position as
between the hospital and Dr. Graham, the whole system 6f
administering the anaesthetic had been devised by, and was under
the control of, the two anaesthetists. It was sought to say
4
[1953] 1 W.L.E. 1472. .« [1939] 2 K.B. 14.
74 QUEEN'S BENCH DIVISION. [1954]

C. A. in the court below that Dr. Graham was following rather blindly
3354 in the footsteps of Dr. Pooler, the senior anaesthetist. That is
the precise opposite to the truth. It is abundantly clear that
„ Dr. ■ Graham was throughout, in regard to tinting, and the way
MINISTER in which the system was earned out, exercising his own
OF HEALTH. . ,
judgment.
The hospital authority has carried out its obligations to the plaintiff
by providing the necessary treatment. • It is not respon- sible for the
negligent acts of the anaesthetist. He is a con: suiting anaesthetist
and in exactly the same position in relation to the hospital as a
visiting surgeon or physician for whose negli- gent acts the hospital
authority is not in law responsible: see Gold v. Essex County
Council, per Lord Greene M.E., 6 and Cassidy v. Ministry of Health,
per Somervell and Singleton L.JJ. 7 In Cassidy's case 7 a hospital
authority was held to be liable for the negligent acts of a full-time
medical officer and a house surgeon, but the basis of the judgments of
Somervell and Singleton L.JJ. was that both doctors were employed
under contracts of service and were servants of the hospital authority.
Somervell L.X. pointed the distinction between a contract of service
and a contract for services. He referred in terms to con- sulting
surgeons and physicians and took theosanie view as that taken by
Lord Greene M.E. in Gold's case.8 Denning L.J. con- sidered that the
distinction between a contract of service and a contract for services was
irrelevant for the purposes of deter- mining the hospital authority's
liability, holding that control over the work was not the determining
factor. He said that the hospital was liable if the doctor or surgeon
was employed and paid by the hospital as the hospital had in its hands
the ultimate sanction for good conduct, the power of dismissal. It
is sub- mitted that Denning L.J. based his judgment on Lord Simond's
speech in Mersey Docks and Harbour Board (Liverpool) Ld. v. Coggins
and Griffiths," where the House of Lords considered the liability of the
board for the negligent acts of .a crane driver and held that the
board, the employer, was liable even though the crane driver, a
skilled man, in carrying out his work, could say" I take no orders
from anybody." " Yet," said Lord Simonds, " ultimately he would
decline to carry it out in the appellants' "way at his peril, for in
their hands lay the only sanction, the " power of dismissal." 10
e [1942] 2 K.B. 293, 302. » [1947] A.C. 1; 62 T.L.B. 533;
7 [1951] 2 K.B. 343. [1940] 2 All E.E. 345.
8 [1942] 2 K.B. 293, 302. i° [1947] A.C. 1, 20.
 75
2 Q.B. QUEEN'S BENCH DIVISION.

That clearly indicates that the employer had in fact an C. A.

ultimate right to control the work of the crane driver. It is sub- ig5i
mitted that the right to control is the true test of liability. — :
Applying that test in this case, the hospital authority has no 0-
right to control the work of Dr. Graham. He is entitled to MINISTER
choose any anaesthetics he' pleases and therefore the hospital authority
cannot be liable for his negligence. He, is not employed under a contract
of service, and on the basis of Somervell and Singleton L.JJ' s
judgment in Cassidy's case 11 he is not the servant of the hospital
authority. If that be right, the maxim res ipsa loquitur cannot
apply. Some of those involved in the operation were servants of the
hospital and some were not. Therefore it cannot be asserted that the
injury was caused .by those who were the servants of the hospital.
If the maxim applies prima facie, the onus of proving negligence
goes back on the plaintiffs. If more than one theory of causation
for the injuries is put forward, one of which can reasonably afford an
explanation not involving negligence the onus of proving negli- gence
is on the plaintiff: Ballard v. North British Railway, per Lord
Dunedin 12; The Kite.13
H. B. H. Hylton-Foster Q.C. and J. R. Cummings-Bruce for Dr.
Graham. It is not contended that if a deeper tinting of the phenol had
been used the contamination of the nupercaine would not have been
detected. But the case has to be decided by the standard of medical
knowledge in 1947, and the emphasis which is now laid, in medical
literature, on colouring only appeared after this case had occurred.
The judge was entitled to find, and rightly found, that the system
of immersion was not defec- tive' and that Dr. Graham had not been
negligent.

Cur. adv. vult.

April 8. The following judgments were read.

SOMERVELL L.J. The two plaintiffs in these consolidated actions

were both anaesthetized by a spinal anaesthetic for minor operations on
October 13, 1947, at the Chesterfield and North Derbyshire Eoyal
Hospital, now represented by the first defen- dant, the Ministrv of
Health. The results were tragic in that both men were and have
since remained paralysed from the waist downwards. Each claims in
negligence. The second defendant is
11 [1951] 2 K.B. 343. ™ [1933] P. 154; 49 TYL.K. 525.
12 1923 S.C.(H.L.) 43, 53.
76
QUEEN'S BENCH DIVISION. [1954 ]
0. A. the anaesthetist, and one of the issues was whether the principle
1954 respondeat superior was applicable as between the hospital and
T : him. The spinal anaesthetic used was nupercaine, manufactured
BOB •
p. and supplied by the third defendant, Ciba Laboratories. It was
MINISTER supplied in glass ampoules, one of which was used for each
OF *i "A N ^T JI

patient. The suggestion that the nupercaine in the two ampoules

Somervell L.J. j n q Ues (;i on must have been defective or contaminated before
delivery to the hospital was, after investigation, abandoned at the
trial. The third defendant was, therefore, not concerned in the
substantive appeal.
The.judge found for the defendants and the plaintiffs appeal. He
found that the damage had been caused by phenol, which had
percolated into the ampoules from a solution in which the two
ampoules, with others, had been immersed. There was difference of
opinion among the experts, but this finding was accepted by all
counsel before us as the explanation, and the question, there- fore, is
whether this percolation was caused by the negligence of the
defendants or either of them.
The ampoules were about 5 inches high, 1 inch in diameter,
narrowing towards the top to a neck about \ inch in diameter, and
swelling out slightly above the neck and then tapering. The ampoule
was opened by filing and then breaking at the neck. Each contained
20 cc. of nupercaine. As delivered by the makers the outside and
label were not sterilized. They were to be treated, as a notice on the box
stated, as " frankly septic." The needle of the syringe could be
inserted through the neck, when the ampoule had been opened,
without coming in contact with the outside of the ampoule. The
ampoule would be held by the sister and the syringe by the
anaesthetist and there was a possibility of accidental contact.
It is plain that this possibility exercised a good many anaes- thetists
round about 1946. There was at the Chesterfield and North
Derbyshire Eoyal Hospital Dr. Pooler, the senior anaes- thetist, the
second defendant, and a resident anaesthetist who was clearly of a
lesser status and who is not concerned in this case. In 1947 Dr.
Pooler and Dr. Graham discussed the danger
.of sepsis as described above, and the importance of sterilizing the
ampoules. Dr. Pooler in fact started for his cases the method which
was used by Dr. Graham at the date of the operations on the
plaintiffs. That was to immerse the ampoules in a 1 in 20 solution of
phenol for twenty minutes and then in a 1 in 40 solution for twelve
or more hours.
On tne judge's finding a quantity of this phenol solution,
2 Q.B. QUEEN'S BENCH DIVISION. 77

sufficient to cause the paralysis, percolated through a crack in C. A.

each ampoule, sufficient nupercaine being left to anaesthetize each 1954
patient. There was no precise evidence as to the amount of
phenol solution necessary 'to cause the injuries, but probably „
about one-fifth of the volume of the nupercaine. Each plaintiff MINISTER
had an injection of 10 cc. If about one-fifth was phenol solution
one would expect anaesthesia and injury. Somervell L.J.
Dr. Graham appreciated the possibility of cracks and the great
danger of phenol solution if injected into the spine. He examined each
ampoule for cracks before taking its contents or part of them into
the syringe. The judge accepted his evidence that he made such
an examination carefully in these cases. " I " did not believe for
one moment that I could have missed a" crack," he said. Was
he negligent in so believing? The judge deals with this matter in
the following paragraph 1: " It is now " clear that phenol can
find its way into an ampoule of nuper- " caine stored in a solution
of phenol through cracks which are" not detectable by the
ordinary visual or tactile examination " which takes place in an
operating theatre—these cracks were " referred to in the evidence
as ' invisible cracks '—or through " molecular flaws in the glass.
The attention of the profession " was first drawn to this risk in
this country by the publication" of Professor Macintosh's book on
Lumbar Puncture and Spinal " Anaesthesia in 1951. In 1947
the general run of competent" anaesthetists would not appreciate
this risk. Dr. Graham " certainly did not appreciate this as a
risk. I accordingly find " that by the standard of knowledge to
be imputed to competent " anaesthetists in 1947, Dr. Graham was
not negligent in failing " to appreciate this risk and a fortiori the
theatre staff were not " negligent."
I accept this. Though Mr. Elwes did not accept these find- ings,
his main attack on Dr. Graham was based on a different matter.
There was evidence that in some hospitals where the immersion system
was used the disinfecting liquid, whether a phenol solution or surgical
spirit, was stained a deep tint with methylene blue or some other dye.
Professor Macintosh described the liquids he had seen as the colour of
ink. This would make it easier, of course, to detect percolation. It
was a method used by Ciba Laboratories and was known to analytical
chemists. A certain amount of confusion arose from the fact that the
two solutions of phenol in which the ampoules were immersed were

i [1954] 1 W.L.K. 128, 133.

?
8 QUEEN'S BENCH DIVISION. [1954 ]

C- A- coloured though not deeply. This was not done as a precaution

1954 against percolation. The 1 in 20 phenol solution was coloured a
~~ light blue and the 1 in 40 a light pink for general purposes of
„. identification and not as a precaution against cracked ampoules.
MraiSTEB j \ s a precaution for this latter purpose the colouring was, as
' Professor Macintosh said, quite inadequate. Dr. Graham gave
Somervell L.J. c e r fc a m answers which might have meant that he was relying on colour
to detect cracks. If so, it should have been deeper. I agree with
Mr. Hylton-Foster's submission that, taking his evi- dence as a whole,
he was not. If, of course, he had seen that the liquid in an ampoule
was pink, he would at once have realized there had been substantial
percolation. He was, however, relying on his visual inspection. Mr.
Elwes submitted that once the plaintiffs had shown that this
precaution was taken in some other hospitals the onus passed to Dr.
Graham or the hospital to explain why it was not adopted in the
present case. If the onus did so pass, I think that it was discharged.
Mr. Hylton-Foster conceded in the course of the trial and before
us that if there had been deep tinting it would probably have
disclosed any dangerous percolation. The judge, who had many
difficult matters to deal with, of which he has relieved us, did not, I
think, fully appreciate this concession. However, the other reasons
which he gives in my opinion justify his finding, with which I agree,
that Dr. Graham was not negligent. Dr. Graham had never heard
of deep tinting as a precaution. There had been a reference in
American publications to colouring, but the only paper traced on "
immersion " in this country made no reference to deep tinting as an
ingredient of the process. On one occasion Dr. Graham found an
ampoule which had been cracked or broken at the top. I do not
think this assists either side. Mr. Hylton-Foster submitted, I think with
force, that if anything it confirmed Dr. Graham's view that cracks
would be visible. The actual method of immersion without deep
tinting was introduced and used in the first instance by his
senior, Dr. Pooler. Dr. Graliam was entitled to place some reliance
on that. It would obviously be wrong to infer negligence from the
fact only that it was used in some other hospitals. I felt at one time
that as Dr. Pooler had started the system it would have been right that
the hospital should have called him. They were, however, submitting
that he was not their servant, and on that basis it was, I think,
reasonable for them not to call him. If it had been obvious or
accepted that he was their " servant " for
2 Q.B . QUEEN' S BENC H DIVISION . 79

this purpose, it might well have been a matter for comment if C. A-

he had not been called. 1954
I t is well to consider the nature of the allegation here made ~
with regard to Dr. Graham' s interests as well as his duties. If ».
a man driving a motor-car is late for an urgent appointment he MINISTER
has at any rate a motive for taking a risk. What, however, is the
Somerv e LJ
suggested act of negligence here? I t is a failure to instruct a " '
sister to put dye into a solution of phenol. I t imposes no burden
on the doctor except the speaking of a sentence. H e or Dr. Pooler
would have every motive for putting this minor burden on the nursing
staff if either had any idea that it might prevent injury to his
patients. There is, in my opinion, on the evidence no justification
for finding that Dr. Graham was negligent in this matter.
The judge found that the hospital was not liable in law for Dr.
Graham' s acts of negligence, if any. I will set out the passage in
which the judge states the position of Dr. Pooler and Dr. G r a h a m 2
: " In October, 1946, he was with Dr. Pooler, who " had taken
his diploma of anaesthesia some years earlier, " appointed as a
visiting anaesthetist to the hospital. H e and " D r . Pooler between
t h e m . we r e under obligation to provide a " regular anaesthetic
service for the hospital, it being left to them " to decide how to
divide up the work. In fact, apart from " emergencies, they
worked at the hospital on alternate days. " The hospital set
aside a sum of money out of their funds " derived from
investments, contributions and donations for " division among
the whole of the medical and surgical staff," including visiting
and consulting surgeons as the participants " might decide. Dr.
Graham participated in this fund but other- " wise received no
remuneration from the hospital. H e was at all " times allowed to
continue his private anaesthetic practice."
The judge referred to Gold v. Essex County Council3 and Cassidy
v. Ministry of Health.4, H e assimilated Dr. Pooler and Dr. Graham
to the '' consulting physicians and surgeons ' ' referred to by Lord
Greene in Gold's case. 5 The line suggested in that case and in
Cassidy's case 6 in the judgments of Singleton L.J . and myself may
not be a very satisfactory one, but I would have regarded Dr. Pooler
and Dr. Graham as part of the permanent staff and, therefore, in the
same position as the orthopaedic

2[1954] 1 W.L.E. 131. * [1951] 2 K.B. 343; [1951] 1

3[1942] 2 K.B. 293; 58 T.L.E. T.Ii.E. 539; [1951] 1 All E.B. 574.
357; [1942] 2 All E.E. 237. "« [1942] 2 K.B. 293, 302. ~
• [1951] 2 K.B. 343.
80 QUEEN'S BENCH DIVISION. ' [1954 ]

C A. surgeon in Cassidy's case. Like him they are, of course, qualified,

19g4 skilled men, controlling as such their own methods. The
positions of surgeons and others under the National Health
„ Service Act, 1946, will have to be decided when it arises. The
MINISTER position of hospitals under that Act may or may not be different'
from when they were voluntary or municipal hospitals.
Somervell L.J. Having regard to my conclusion with regard to Dr. Graham,
the matter is relevant only on the alleged application of res ipsa loquitur.
The judge said that that principle could not apply to a case
where the operation was, as he held here, under the control of two
persons not in law responsible for each other. Our attention was
drawn to some observations in Mahon v. Osborne 7 which suggest
that this is too widely stated. As to the maxim itself, I agree, with
respect, with what was said by Lord Eadcliffe in Barkway v. South
Wales Transport8: " I find nothing" more in that maxim than
the rule of evidence, of which the " essence is that an event
which in the ordinary course of things'' is more likely than not to
have been caused by negligence is by" itself evidence of negligence."
In medical cases.the fact that something has gone wrong is very often
not in itself any evidence of negligence. In surgical operations
there are inevitably risks; On the other hand, of course, in a case like
this, there are points where the onus may shift, where a judge or jury
might infer negli- gence, particularly if available witnesses who could
throw light on what happened were not called. Having come to the
conclusion that the hospital were responsible for Dr. Graham, the
judge's reason (which is applicable in certain cases) for excluding the
maxim has not operated on my mind.
I will now turn to the second main submission by Mr, Elwes.
Invisible cracks are none the less cracks and would not have been there
if the ampoules had been carefully handled by the nursing staff.
Therefore, there must have been negligent handling. And, of course,
if the submission is to succeed, that negligent handling must have
caused the injury. A number of experiments were conducted to try to
crack ampoules in the way in which they must have been cracked
on the findings. It was, of course, possible to break them if handled
sufficiently roughly. It was found very difficult to produce an
invisible or difficultly visible crack except by thermal methods. It
would be a very speculative basis on which to find some unidentified
nurse negligent. I think, however, making assumptions in the
plaintiffs' favour, the
7
[1939] 2 K.B. 14; [1939] 1 All » [1950] A.C. 185; [1950] 1 All
E.E. 535. E-.B. 392, 403.
 2 Q.B. QUEEN'S BENCH DIVISION. 91

submission fails on causation. I will assume that a nurse knocked C. A.

two ampoules together as she was placing them in the basin and 1954
this '' rough ' ' handling caused the '' invisible '' cracks. I t would r
obviously be inadvertent and I will assume negligent. The duty „
as such not negligently to mishandle equipment would be a duty MINISTER
owed to the hospital. If an ampoule were dropped and broken
3 o m erv e
there would clearly be no breach of any duty to a patient. In " L-J
the case I am assuming, having knocked the ampoules the natural
inference is that the nurse would look to see if they were cracked. This
is what every normal person who has dropped or knocked something
does. Is it broken? As the judge has found there was no visible
crack and the nursing staff had no reason to foresee invisible cracks, the
nurse would reasonably assume no harm
. had been done and would let the ampoule go forward. The duty
which the nursing staff owed to the plaintiffs was to take reason-
able care to see that cracked or faulty ampoules did not reach
the operating theatre. That duty would not, in my opinion, be
broken in the circumstances and on the assumption as set out .
above.
For these reasons I would dismiss the appeal.

DENNIN G L.J. No one can be unmoved by the disaster which has

befallen these two unfortunate men. They were both working men
before they went into the Chesterfield Hospital in October, 1947. Both
were insured contributors to the hospital, paying a small sum each
week, in return for which they were entitled to be admitted for treatment
when they were ill. Each of them was operated on in the hospital for a
minor trouble, one for something wrong with a cartilage in his knee, the
other for a hydrocele. The operations were both on the same day,
October 13, 1947. Each of them was given a spinal anaesthetic by
a visiting anaesthetist, Dr. Graham. Each of them has in
consequence been paralysed from the waist down.
The judge has said that those facts do not speak for them- selves,
but I think that they do. They certainly, call for an ex- planation. Each
of these men is entitled to say to the hospital: " While I was in
your hands something has been done to me " which has wrecked
my life. Please explain how it has come " to p a ss. " The reason
why the judge took a different view was because he thought that the
hospital authorities could disclaim responsibility for the anaesthetist,
Dr. Gr aham : and, as it might be his fault and not theirs, the
hospital authorities were not called upon to give an explanation. I
think that that reasoning is
2 Q.B. 1954. 6 (1)
82 QUEEN'S BENCH DIVISION. [1954 ]

C. A.wrong. In the first place, I think that the hospital authorities

■L954 are responsible for the whole of their staff, not only for the nurses
and doctors, but also for the anaesthetists and the surgeons. It
„ does not matter whether they are permanent or temporary,
MINISTER resident or visiting, whole-time or part-time. The hospital
01? H WAT TTT

' authorities are responsible for all of them. The reason is

Denning L.J. because, even if they are not servants, they are the agents of the
hospital to give the treatment. The only exception is the case
of consultants or anaesthetists selected and employed by the patient
himself. I went into the matter with some care in Cassidy v.
Ministry of Health 9 and I adhere to all I there said. In the second
place, I do not think that the hospital authorities and Dr. Graham
can both avoid giving an explanation by the simple expedient of
each throwing responsibility on to the other. If an injured person
shows that one or other or both of two persons injured him, but cannot
say which of them it was, then he is not defeated altogether. He can
call on each of them for an explana- tion : see Baker v. Market
Harborough Industrial Co-operative Society.10
I approach this case, therefore, on the footing that the hospital
authorities and Dr. Graham were called on to give an explanation of
what has happened. But I think that they have done so. They have
spared no trouble or expense to seek out the cause of the disaster. The
greatest specialists in the land were called to give evidence. In the
result, the judge has found that what happened was this: In October,
1947, a spinal anaesthetic was in use at the hospital called
nupercaine. It was a liquid supplied by the makers in closed glass
ampoules. These were test tubes sealed with glass. When the time
came to use it, a nurse filed off the glass top, the anaesthetist inserted
his needle and drew off the nupercaine, which he then injected into
the spine of the patient. It so happened that in this process there was
some risk of the needle becoming infected. The reason was
because the outside of the ampoule might become contaminated with
a germ of some kind: and the needle might touch it as the
anaesthetist was fill- ing it. That this risk was a real one is shown
by the fact that quite a number of cases became complicated by
some infection or other.
In order to avoid this risk, the senior anaesthetist at the hospital,
Dr. Pooler, decided to keep the ampoules in a jar of disinfectant called
phenol, which was a form of carbolic acid. This disinfectant was
made in two strengths. The stronger was
» [1951] 2 K.B. 343. " [1953] 1 W.L.E. 1472.
2 Q.B. QUEEN'S BENCH DIVISION. 83

tinted light blue and the weaker was tinted pale red. This was C. A.
so as to distinguish it from water. Following Dr. Pooler, the 1954
junior anaesthetist, Dr. Graham, thought that it was a good T
thing to disinfect the ampoules in this way and he adopted the „.
same system. By a great misfortune this new system of disinfect- MINISTEB
ing had in it a danger of which Dr. Pooler and Dr. Graham were
Denl ng LJ
quite unaware. The danger was this: the ampoules in the jar " -
might become cracked; the cracks might be so fine or so placed
that they could.not be detected by ordinary inspection, and the carbolic
disinfectant would then seep through the cracks into the
nupercaine, and no one would realize that it had taken place. Thus the
anaesthetist, who thought he was inserting pure nuper- caine into the
spine of the patient, was in fact inserting nupercaine mixed with
carbolic acid. . That is the very thing which happened in the case of
these two men. Carbolic acid was inserted into their spines and corroded
all the nerves which con- trolled the lower half of their bodies
That is the explanation of the disaster, and the question is: were
any of the staff negligent? I pause to say that once the accident is
explained, no question of res ipsa loquitur arises. The only question
is whether on the facts as now ascertained any- one was negligent.
Mr. Elwes said that the staff were negligent in two respects: (1)
in not colouring the phenol with a deep dye;
(2) in cracking the ampoules. I will taken them in order: (1) The
deep tinting. If the anaesthetists had foreseen that the ampoules
might get cracked with cracks that could not be detected on
inspection they would no doubt have dyed the phenol a deep blue;
and this would have exposed the contamination. But I do not think
that their failure to foresee this was negligence. It is so easy to be
wise after the event and to condemn as negligence that which was
only a misadventure. We ought always to be on our guard against it,
especially in cases against hospitals and doctors. Medical science
has conferred great benefits on man- kind, but these benefits are
attended by considerable risks. Every surgical operation is attended
by risks. We cannot take the benefits without taking the risks.
Every advance in technique is also attended by risks. Doctors, like
the rest of us, have to learn by experience; and experience often
teaches in a hard way. Something goes wrong and shows up a
weakness, and then it is put right. That is just what happened here.
Dr. Graham sought to escape the danger of infection by disinfecting
the ampoule. In escaping that known danger he unfortunately
ran
2 Q.B. 1954. 6 (2)
84 QUEEN'S BENCH DIVISION. [1954]
O. A. into another danger. He did not know that there could be un-
1954 detectable cracks, but it was not negligent for Kim not to know
it at that time. We must not look at the 1947 accident with
„ 1954 spectacles. The judge acquitted Dr. Graham of negligence
MINISTER and we should uphold his decision.
on1 TTPAT TTT
(2) The cracks. In cracking the ampoules, there must, I
Penning L.J. feaTj n a v e been some carelessness by someone in the hospital.
The ampoules were quite strong and the sisters said that they should
not get cracked if proper care was used in handling them. They must
have been jolted in some way by someone. This raises an interesting
point of law. This carelessness was, in a sense, one of the causes
of the disaster; but the person who jolted the ampoule cannot
possibly have foreseen what dire eon- sequences would follow. There
were so many intervening opportunities of inspection that she might
reasonably think that if the jolting caused a crack, it would be
discovered long before any harm came of it. As Somervell L.J. has
pointed out, she herself would probably'examine the ampoule for a
crack, and see- ing none, would return it to the jar. The anaesthetist
himself didin fact examine it for cracks, and finding none, used it.
The trouble was that nobody realized that there might be a crack
which could not be detected on ordinary examination. What, then,
is the legal position?
It may be said that, by reason of the decision of this court
in In re Polemis l l the hospital authorities are liable for all the
consequences of the initial carelessness of the nurse; even though the
consequences could not reasonably have been foreseen. But the
decision in In re Polemis'11 is of very limited application. The reason is
because there are two preliminary questions to be answered before it
can come into play. The first question in every case is whether there
was a duty of care owed to the plaintiff; and .the test of duty
depends, without doubt, on what you should foresee. There is no duty
of care owed to a person when you could not reasonably foresee
that he might be injured by your conduct: see Hay or Bourhill v.
Young,12 Woods v. Duncan,13 per Lord Eussell and per Lord Porter.
The second question is whether the neglect of duty was a
cause '' of the injury in the proper sense of that term; and
causation, as well as duty, often depends on what you should
11
[1921] 3 K.B. 560; 37 T.L.E. « [1946] A.C. 401, 437; 62 T.L.B.
940. 283; [1946] 1 All E.E. 420n.
12 [1943] A.C. 92; [1942] 2 All

E.B. 396.
2 Q.B. QUEEN'S BENCH DIVISION. 85

foresee. The chain of causation is broken when there is an inter- C. A.

vening action which you could not reasonably be expected to fore- lgg4
1
see: see Woods v. Duncan, * per Lord Simon, Lord Macmillan,
and Lord Simonds. It is even broken when there is an interven- „
ing omission which you could not reasonably expect. For MINISTER
instance, in cases based on Donoghue v. Stevenson" a manu-
facturer is not liable if he might reasonably contemplate that an Denning L.J.
intermediate examination would probably be made. It is only
when those two preliminary questions—duty and causation—are
answered in favour of the plaintiff that the third question, remote- ness
of damage, comes into play.
Even then your ability to foresee the consequences may be vital.
It is decisive where there is intervening conduct by other persons: see
Stansbie v. Troman,1' Lewis v. Carmarthenshire County Council.1''
It is only disregarded when the negligence is the immediate or
precipitating cause of the damage, as in In re Polemis 18 and Thurogood
v. Van'den Berghs & Jurgens Ld.19 In all these cases you will find
that the three questions, duty, causa- tion, and remoteness, run
continually into one another. . It seems to me that they are simply
three different ways of looking at one and the same problem. Starting
with the proposition that a negli- gent person should be liable, within
reason,.for the consequences of his conduct, the extent of his liability
is to be found by asking the one question: Is the consequence fairly
to be regarded as within the risk created by the negligence? If so,
the negligent person is liable for it: but otherwise not.
Even when, the three questions are taken singly, they can only
be determined by applying common sense to the facts of each
particular case: see as to duty, King v. Phillips,20 as to causation,
Stapley v. Gypsum Mines Ld.,21 per Lord Reid; and as to remoteness,
Liesbosch, Dredger v. Edison S.S. (Owners),22 per Lord Wright.
Instead of asking three questions, I should have thought that in many
cases it would be simpler and better to ask the one question: is the
consequence within the risk ? And to answer it by applying ordinary
plain common sense. That is the way in which Singleton L.J. and
Hodson L.J. approached a
"[1946] A.C. 421, 431, 442. 20 [1953] 1 Q . B . 429, 437, 443;
15
[1932] A.C. 562; 48 T.L.E. 494. [1953] 1 All E.E. 617.
" [1948] 2 K.B. 48; 64 T.L.B. E.E. 617.
226; [1948] 1 All E.E. 599. 21 [1953] A.C. 663 at p. 681; [1953]
" [1953] 1 W . I J . E . 1439; [1953] 2 All E.E. 478.
2 All E.E. 1403. 22 [1933] A.C. 449 at p. 460; 49
»» [1921] 3 K.B. 560. T.L.R. 289.
" [1951] 2 K.B. 537; [1951] 1
T.L.R. 557; [1951] 1 All E.E. 682.
86 QUEEN'S BENCH DIVISION. [1954]
C; A. difficult problem in Jones v. Livox Quarries Ld.,23 and I should
jgg^ like to approach this problem in the same way.
Asking myself, therefore, what was the risk involved in care-
„ less handling of the ampoules, I answer by saying that there was
MINISTER such a probability of intervening examination as to limit the risk.
' The only consequence which could reasonably be anticipated was
Denning L.j. foe loss of a quantity of nupercaine, but not the paralysis of a
patient. The hospital authorities are therefore not liable for it.
When you stop to think of what happened in the present
case, you will realize that it was a most extraordinary chapter of
accidents. In some way the ampoules must have received a jolt,
perhaps while a nurse was putting them into the jar or while a
trolley was being moved along. The jolt cannot have been very
severe. It was not severe enough to break any of the ampoules
or even to crack them so far as anyone could see. But it was
just enough to produce an invisible crack. The crack was of a
kind which no one in any experiment has been able to reproduce
again. It was too fine to be seen, but it was enough to let in
sufficient phenol to corrode the nerves, whilst still leaving enough
nupercaine to anaesthetize the patient. And this very excep-
tional crack occurred not in one ampoule only, but in two
ampoules used on -the self-same day in two successive operations;
and none of the other ampoules was damaged at all. This has
taught the doctors to be on their guard against invisible cracks.
Never again, it is to be hoped, will such a thing happen. After
this accident a leading textbook was published in 1951 which
contains the significant warning: " Never place ampoules of local
" anaesthetic solution in alcohol or spirit. This common practice"
is probably responsible for some of the cases of permanent "
paralysis reported after spinal analgesia." If the hospitals were
to continue the practice after this warning, they could not com-
plain if they were found guilty of negligence. But the warning
had not been given at the time of this accident. Indeed, it was
the extraordinary accident to these two men which first disclosed
the danger. Nowadays it would be negligence not to realize the
danger, but it was not then.
One final word. These two men have suffered such terrible
consequences that there is a natural feeling that they should be
compensated. But we should be doing a disservice to the com- munity
at large if we were to impose liability on hospitals and doctors for
everything that happens to go wrong. Doctors would be led to think
more of their own safety than of the good of their
23 [1952] 2 Q.B. 608 at pp. 613, 614, 618; [1952] 1 T.L.E. 1377.
2 Q.B. QUEEN'S BENCH DIVISION. 87

patients. Initiative would be stifled and confidence shaken. A C. A.

proper sense of proportion requires us to have regard to the con- ig54
ditions in which hospitals and doctors have to work. W,e must
insist on due care for the patient at every point, but we must „.
not condemn as negligence that which is only a misadventure.' I MINISTER
agree with my Lord that these appeals should be dismissed.

MORRIS L.J. Surgical operations were successively performed on

the two plaintiffs on October 13, 1947, at the Chesterfield and North
Derbyshire Royal Hospital, which was then a voluntary hospital. In
each case a spinal anaesthetic was administered by the same
anaesthetist, nupercaine being injected into the theca by means
of a puncture between lumbar vertebrae. In each case the
nupercaine was aspirated from a glass ampoule, a separate ampoule
being used (though the contents were not wholly used) for each
patient. The glass ampoules containing the nupercaine, with others, had
been kept in a glass jar which con- tained phenol in a 1 in 40 solution,:
they had previously been immersed for about 20 minutes in phenol
in a 1 in 20 solution. In the period following the operations each
plaintiff developed a condition of spastic paraplegia. After a full and
careful hearing the judge negatived the suggestion that the
condition to which the plaintiffs became reduced should be attributed
to the nuper- caine itself. He came to the positive conclusion that
the injuries were in fact caused by the injection of phenol with the
nuper- caine. The defendants did not seek to assume the burden of
assailing on appeal this finding of fact. No criticism of the operating
surgeons was at any time made in the proceedings. The Minister
of Health was sued as the successor of the trustees of the hospital:
the anaesthetist, Dr. Graham, was also sued. The manufacturers of
the nupercaine were later joined as defendants but before the
conclusion of the trial the case against them was dismissed with the
concurrence of counsel for the other parties.
The evidence adduced at the hearing showed that it was only
in very rare cases that any untoward consequence followed upon spinal
anaesthetic injection. In the nature of things the plaintiffs could
not know, nor be expected to know, exactly what took place in
preparation for and during their operations. When they proved all
that they were in a position to.prove they then said " res ipsa
loquitur." But this convenient and succinct for- mula possesses no
magic qualities: nor has it any added virtue, other than that of
brevity, merely because it is expressed in
88
QUEEN'S BENCH DIVISION. [1954 ]

C- A. Latin. When used on behalf of a plaintiff it is generally a short

!954 way of saying : " I submit that the facts and circumstances which
" I have proved establish a prima facie case of negligence against
„ " the defendant." It must depend upon all the individual facts
MINISTER and the circumstances of the particular case whether this is so.
' There are certain happenings that do not normally occur in the
Morris L.J, absence of negligence, and upon proof of these a court will probably
hold that there is a case to answer. (For a valuable discussion of this
topic see an article by Dr. Ellis Lewis: 1951, 11 Cambridge Law
Journal, p. 74.)
Where there are two or more defendants it may be that the facts
proved by a plaintiff are such as to establish a prima facie case
against each defendant. Thus in Mahon v. Osborne 24 Mac- Kinnon L.J.
said: " Five persons were concerned in the operation " on March 4
: Mr. Osborne (the surgeon), the anaesthetist, Nurse " Ashburner
(as chief, or theatre, nurse), Nurse Edmunds, and " Nurse
Callaghan. The plaintiff, having no means of knowing " what
happened in the theatre, was in a position of being able " to rely
on the maxim res ipsa loquitur so as to say that some " one or
more of these five must have been negligent, since the " swab was
beyond question left in the abdomen of the deceased." In fact, she
sued Mr. Osborne, the surgeon, and Miss Ash-" burner, the
chief nurse, alleging that one or other of them, or" perhaps both,
must have been negligent. But it was for the" plaintiff to establish
her case against either or both."
Difficulties may arise, however, if a plaintiff only proves facts from
which the inference is that there may have been negligence either in
defendant A or in defendant B. So in the present case it was said
that unless Dr. Graham was the servant or agent of the hospital the
position at the close of the plaintiffs' cases was that if a prima facie
case of negligence was established it was merely a case that pointed
uncertainly against either Dr. Graham or the hospital. I do not think
that it is necessary to consider whether, if Dr. Graham was not the
servant or agent of the hospital and if no evidence at all had been
called on behalf of the defendants, it could have been asserted that
a prima facie case was made out both against Dr. Graham and against
the hospital, for I have come to the conclusion that Dr. Graham
was the servant or agent of the hospital.
In Gold v. Essex County Council25 Lord Greene M.E. pointed out
that in cases of this nature the first task is to discover the

" [1939] 2 K.B. 14, 38. " [1942] 2 K.B. 293, 301.
2 Q.B. QUEEN'S BENCH DIVISION. 89

extent of the obligation assumed by the person whom it is sought C. A.

to be made liable. He added : " Once this is discovered, it follows ^54
" of necessity that the person accused of a breach of the obliga- :—
" tion cannot escape liability because he has employed another „
" person, whether a servant or agent, to discharge it on his MINISTER
01? H FiATiTTT
" behalf, and this is equally true whether or not the obligation
" involves the use of skill." In the present cases the judge held MorrisL.J. that
both plaintiffs were contributors for hospital and surgical
treatment under a contributory scheme run by the hospital, so that
they made some contributions which were received by the hospital for
their treatment. The exact details of the scheme which the hospital
had run were not before us and they might not have added
materially to the facts proved. While the requisite standard of care
does not vary according as to whether treatment is gratuitous or on
payment, the existence of arrange- ments entitling the plaintiffs to
expect certain treatment might be a relevant factor when considering
the extent of the obligation assumed by the hospital.
In his judgment in Gold v. Essex County Council Lord Greene
analysed the position of the various persons in the "
organization " of the hospital to which the plaintiff in that case
resorted for free advice and treatment. He said 2e : " The "
position of the nurses again . : . if the nature of their employ- "
ment, both as to its terms and as to the work performed, is "
what it usually is in such institutions I cannot myself see any "
sufficient ground for saying that the defendants do not under-"
take towards the patient the obligation of nursing him as dis- "
tinct from the obligation of providing a skilful nurse." This passage
conveniently demonstrates a contrast. A hospital might assume the
obligation of nursing: it might on the other hand merely assume the
obligation of providing a skilful nurse. But the question as to what
obligation a hospital has assumed becomes, as it seems to me,
ultimately a question of fact to be decided having regard to the
particular circumstances of each particular case: the ascertainment
of the fact may require in some cases inference or deduction from
proved or known facts. In the present case we are concerned only
with the position of Dr. Graham in 1947 in this voluntary hospital.
The general position in regard to nurses would appear to be
reasonably uniform and clear. In Gold's case Lord Greene said 2 7 :
" Nursing, it appears to me, is just what the patient is

" [1942] 2 K.B. 302. « Ibid. '

90 QUEEN'S BENCH DIVISION. [1954]
C. A. " entitled to expect from the institution, and the relationship of
l e nul
1954 '' ^ 'ses to the institution supports the inference that they "
are engaged to nurse the patients. In the case of a nursing
E
° " home conducted for profit, a patient would be surprised to be
MINISTER " told that the home does not undertake to nurse him. In the
OP BALTH, ,, c a g e Q j : a v o i u n t a r y hospital with the usual nursing staff his
Morris L.J. " j u s t expectation would surely be the same. The idea that
" in the case of a voluntary hospital the only obligation which
" the hospital undertakes to perform by its nursing staff is not
" the essential work of nursing but only so-called administrative "
work appears to me, with all respect to those who have thought "
otherwise, not merely unworkable in practice but contrary to"
the plain sense of the position." On the principles so clearly enunciated
the court in that case held that the hospital had assumed the
obligation of treating a patient who sought treatment by Grenz rays
and of giving the treatment by the hand of a competent radiographer.
That was the natural and reasonable inference to be drawn from the way
in which those running the hospital conducted their affairs and from
the nature of the engage- ment of the radiographer.
If a patient in 1947 entered a voluntary hospital for an operation
it might be that if the operation was to be performed by a visiting
surgeon the hospital would not undertake, so far as concerned
the actual surgery itself, to do more than to make the necessary
arrangements to secure the services of a skilled and competent surgeon.
The facts and features of each particular case would require
investigation. Bu t a hospital might in any event have undertaken to
provide all the necessary facilities and equipment for the operation
and the obligation of nursing and also the obligation of
anaesthetizing a patient for his operation. The question in the present
case is whether the hospital under- took these obligations. I n my
judgment they did. There can be no doubt that they undertook to
nurse the plaintiffs and to provide the necessary facilities and
equipment for the operations. I think they further undertook to
anaesthetize the plaintiffs. The arrangements made between the
hospital and Dr. Pooler and Dr. Graham, together with the
arrangements by which a resident anaesthetist was employed, had the
result that the hospital pro- vided a constantly available anaesthetic
service to cover all types of cases.
I t is true that Dr. Pooler and Dr. Graham could arrange between
themselves as to when they would respectively be on duty at the
hospital: and each was free to do private work.
2 Q.B. QUEEN'S BENCH DIVISION. 91

But these facts do not negative the view, to which all the circum- C. A. stances
point, that the hospital was assuming the obligation of i g5 4 anaesthetizing the
plaintiffs for their operations. . I consider
B
that the anaesthetists were members of the "organization" of 0°
the hospital: they were members of the staff engaged by the MINISTER
0F EAIiTH
hospital to do what the hospital itself was undertaking to do. '
The work which Dr. Graham was employed by the hospital to do Morris L.J.
was work of a highly skilled and specialized nature, but this fact
does not avoid the application of the rule of " respondeat
'' superior.'' If Dr. Graham was negligent in doing his work I consider
that the hospital would be just as responsible as were the defendants
in Gold v. Essex County Council2S for the negli- gence of the
radiographer or as were the defendants in Cassidy
v. Ministry of Health.29 I have approached the present case, therefore,
on the basis that the defendants would be liable if the plaintiffs' injuries
were caused by the negligence either of Dr. Graham or by the
negligence of someone on the staff who was concerned with the
operation or the preparation for it. On this basis, if negligence could
be established against one or more of those for whom the hospital
was responsible, it would not matter if the plaintiffs could not point
to the exact person or persons who had been negligent. a
It was not suggested that Dr. Graham was negligent in using
nupercaine, nor that there was anything faulty in the manner of his
injecting. But it was said that the evidence pointed to the fact
that the quantity of phenol which must have found its way into the
nupercaine "had passed through cracks of dimensions which would
not have eluded a careful examiner. This view depended in part upon
an estimate as to the percentage of phenol admixture which would be
damaging and in part upon the evid- ence as to the results of
experiments to ascertain the rate at which phenol might percolate
through cracks. But it seems unlikely that Dr. Graham in two
successive operations would fail to detect cracks which could be
observed or felt. The judge, having seen and heard Dr. Graham,
whose evidence he said was given "i n a very careful and forthright
manner," rejected the suggestion that Dr. Graham had failed to detect
cracks which could have been seen. I do not think that this finding can
be disturbed, and, accordingly, the matter must be considered on
the footing that phenol had found its way into the ampoules through
cracks not ordinarily detectable. On this basis it is clear

28 29
[1942] 2 K.B. 293. [1951] 2 K.B. 343.
92 QUEEN'S BENCH DIVISION. [1954 ]

C. A. that if the phenol solution had been tinted with some vivid colour-
ig5 4 ing any escape of the solution into the ampoules would have been
readily apparent. This was at all times frankly conceded by
°B Mr. Hylton-Foster. The question arises whether Dr. Graham
MINISTER was negligent in not arranging for the deep-tinting of the phenol
OP ^EALTH. so i u tii orl i^g ph e n o i solution as used in the hospital was in
Morris L.J. fact coloured, though not vividly. This colouring was part of the
routine adopted in the hospital to denote and to identify phenol.
It was Dr." Pooler who first introduced in the hospital the
system of immersing the ampoules in phenol solution. Dr.
Graham considered the matter for some time before he followed
the lead given him by his senior and more experienced colleague,
upon whose opinion he greatly relied. "When Dr. Graham
adopted the new method he realized full well, as he unhesitatingly
admitted, that if a glass ampoule became cracked there could
be resultant percolation of phenol solution which would be a
" terribly serious danger." It was for that reason that he felt
it necessary, after changing over to the new method, to examine
carefully for cracks. But Dr. Graham was most emphatic in his
evidence that in 1947 he had no knowledge at all that there
might be in an ampoule some kind of a crack which was not
visible but wh\ch yet permitted percolation. He firmly believed
that there was no danger provided that there was no crack that
could be seen on proper inspection: he never conceived the idea
of a crack that he could not see. I read his evidence, when taken
in its entirety, as showing that he was not relying upon seeing
some discolouration as a warning that there had been percola-
tion', but that he was convinced that danger could only arise if
there was a crack that could be seen and that such danger could
be fully averted by careful inspection.
It is now known that there could be cracks not ordinarily detectable.
But care has to be exercised to ensure that conduct in 1947 is only
judged in the light of knowledge which then was or ought
reasonably to have been possessed. In this connexion the then-
existing state of medical literature must be had in mind. The question
arises whether Dr. Graham was negligent in not adopting some
different technique. I cannot think that he was. I think that a
consideration of the evidence in the case negatives the view that Dr.
Graham was negligent and I see no reason to differ from the
conclusions which were reached on this part of the case by the judge.
But it is further said that there must have been negligent
mishandling of the ampoules on the part of some member or
members of the staff of the hospital. On behalf
2 Q.B. QUEEN'S BENCH DIVISION. 93

c
of the plaintiffs it was urged that the ampoules must have - A-
arrived intact and in good order at the hospital and must have 1954
been carelessly handled at a later stage when they were being
made ready and available for operative use. There was much •v
evidence which supported the contention that ampoules could MINISTEB
only have been damaged if they were mishandled. Even so, it
is problematical as to when and where and under what circum- Morris L.J.
stances these two ampoules became damaged. But as the case
now stands an acceptance of the finding of fact of the judge
that Dr. Graham carefully examined the ampoules used and that
there were no cracks which would by such examination have been
revealed, involves that the offending cracks were not detectable ones.
If the view is correct that an anaesthetist in 1947 was not negligent
in not knowing of the risk of seepage through what have been called "
invisible cracks " it follows, I think, that members of the theatre
staff could not be expected to know of any such risk. In his speech
in Bolton v. Stone 30 Lord Porter said: " It " is not enough that
the event should be such as can reasonably" be foreseen: the
further result that injury is likely to follow " must also be such
as a reasonable man would contemplate," before he can be convicted
of actionable negligence." If some member of the staff had in fact
mishandled the ampoules in question then the position was either
that damage was not seen after an actual inspection or that an
inspection would have been unavailing: since no detectable damage to
them was caused there was no reason to foresee that there was any risk
in leaving such ampoules amongst those from which an anaesthetist
would select and no reason to contemplate that any injury would be
likely to follow. Though there must be abiding sympathy with the two
plaintiffs in their grievous and distressing misfortunes, I consider that
the judgment of the judge was correct

Appeals dismissed.
Leave to appeal to House of Lords refused.

Solicitors: Gibson & Weldon for John Whittle, Robinson dt Bailey,

Manchester; Berrymans; Hempsons; Swepstones.

A. W. G.
so [1951] A.C. 850, 858; [1951] 1T.L.R. 977; [1951] 1 All E.E. 1078.

2 Q.B. 1954. 7
 MANU/CF/0136/1997
Equivalent/Neutral Citation: 1997(2)C.P.C.405, I(1998)CPJ110(NC), 1997 (2) CPR 144

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
First Appeal No. 286 of 1994
Decided On: 30.05.1997
Sethuraman Subramaniam Iyer Vs. Triveni Nursing Home and Ors.
Hon'ble Judges/Coram:
V. Balakrishna Eradi, J. (President), S.S. Chadha, Dr. R. Thamarajakshi and C.L.
Chaudhry, JJ. (Members)
Counsels:
For Appellant/Petitioner/Plaintiff: Party-in-Person
For Respondents/Defendant: I.D. Sood, Authorised Representative Advocate
ORDER
C.L. Chaudhry, J. (Member)
1 . This appeal has arisen out of the order dated 9.12.1993 passed by the Consumer
Disputes Redressal Commission, Maharashtra. The facts which are necessary for the
determination of the controversy between the parties may be summarised as under. The
complainant's wife Shanta was suffering from repeated attacks of Sinusitis and for that
treatment she approached Dr. S.C. Rao opposite party No. 2 for permanent cure. Dr.
Rao advised her to admit herself in the Triveni Nursing Home i.e. opposite party No. 1
where Dr. Rao was acting as Consultant and ENT Specialist. Dr. Rao had diagnosed a
condition of deviated Nasal Septum and advised Shanta that minor operation would cure
the ailment permanently. The complainant enquired from Dr. Rao about the expenses
and risk. She was assured by Dr. Rao that there was no risk and the mortality rate was
nil. Shanta agreed to go in for operation. The operation was fixed for 28th December,
1990. Shanta was admitted about 5.30 a.m. at the Nursing Home of the opposite party
No. 1. Dr. Rao arrived at 5.30 a.m. and advised the staff to make the necessary
preparation for the operation of Shanta. Shanta was taken to the operation theatre
around 6.10 a.m. while the complainant waited outside. At about 6.20 a.m. Dr. Rao
called the complainant in the operation theatre and enquired whether Shanta had any
previous complaints of 'Fits', to which the complainant replied in the negative.
According to the complainant he was asked to sit beside his wife Dr. Rao started making
enquiries from his staff for the medicines to be administered to Shanta which he could
not locate. Thereafter, Shanta was given an injection of calmpose. Later on Dr. Sood
was seen massaging manually Shanta's heart to which she did not respond. It was
further alleged that search was going on to locate life saving drug in the operation
theatre which was not located by Dr. Rao. Dr. Parulekar was also called on the
telephone and on his arrival oxygen was administered to Shanta. Dr. Raghavan was
called on the telephone who took over from Dr. Sood and himself started cardiac
massage. The complainant was informed by Dr. Raghavan that his wife had suffered
from a massive heart attack and she was in a very serious condition. According to the
complainant that despite serious condition of Shanta, Cardiologist was not consulted

13-04-2024 (Page 1 of 4) www.manupatra.com SVKM's NMIMS University

and neither he was called for. Thereafter, Shanta died. The complainant attributed
medical negligence in the service of Dr. Rao and claimed Rs. 10.00 lakhs as
compensation.
2. Opposite party No. 1 filed its written version through Dr. Sood one of its partner. It
was pleaded that no medical services were rendered for consideration to the deceased.
However, it was admitted that Dr. Sood was a General Surgeon and ENT consultant and
denied that there was any negligence on the part of the opposite party No. 1 Dr. Rao,
opposite party No. 1 filed separate written version and denied the complainant's
allegation made in the complaint.
3. In support of his allegation the complainant placed on record copy of the operation
note of Smt. Shanta maintained by the Nursing Home, copy of the correspondence
exchanged between the parties, the post-mortem report his pathological report in
respect of Shanta and a copy of the FIR lodged with the Police. On the pleadings andthe
material placed on record by the parties; the State Commission formulated the
following points for determination:
(1) Whether the complaint is maintainable?
(2) Whether there has been negligence in the medical service of opposite party
Nos. 1 & 2 ?
(3) Whether the complainant is entitled to claim any compensation ?
4. The State Commission returned the finding that there was no negligence in rendering
services by opposite party No. 2. As a result of the finding on the issue No. 2 the
complaint was dismissed.
5 . Feeling aggrieved by the order of the State Commission, the complainant has
approached this Commission by way of this appeal.
6. We have heard the matter and perused the record. The appellant appeared in person
while the respondent No. 1 was represented by Dr. I.D. Sood and Mr. Raja B. Thakre,
Advocate appeared for respondent No. 2. The appellant raised a number of points. It
was contended by the appellant that the State Commission accepted that the respondent
No. 2 had the required professional skill to administer the anaesthesia without the
presence of a qualified anaesthetist, the State Commission had not applied its mind to
the fact that the respondent No. 2 was unable to cope up with the emergency caused as
a result of the anaesthesia administered by him. The resultant anaphylactic shock,
evident by the convulsions suffered by appellant's deceased wife, required a short
acting antidote and the best would have been pentothal. Instead, the respondent No. 2
displayed total ignorance as a medical practitioner, and for deficiency in storing proper
drugs by administering Calmpose, a slow acting sedative. The State Commission failed
to consider that though medical practitioner may be well aware of the requirement and
sufficiency of anaesthesia, which they administered themselves without an anaesthetist,
every medical practitioner such as the respondent No. 2 was expected to encounter and
should be able to cope with an emergency situation inherent with administration of
anesthesia. The deceased herself had, in a prior consultation a couple of months
preceding the operation, informed the respondent No. 2 that she was free from ailments
such as diabetes, fits, allergies to food and drugs, except the history of hypertension.
The State Commission failed to appreciate that the respondent No. 2 and his assistants
were in a state of a panic when unable to treat the unconscious lifeless wife of the
complainant for anaphylactic shock. The State Commission did not take into

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consideration an important fact that the respondent No. 2 wasted precious minutes by
questioning the appellant who was called in at 6.20 a.m. into the operation theatre
where he found his wife unconscious and did not respond when he called out her name
thrice. The State Commission relied upon the operational notes placed on record by
respondent No. 2. The State Commission had given no importance to the fact that the
medical notes relied upon, were in fact written after the appellant's wife had expired
and after the police were informed about the death. The State Commission did not
appreciate the post-mortem report in its right perspective. The State Commission erred
in ruling out any deficiency in service on the part of respondent No. 2 in the treatment
of appellant's wife for anaphylactic shock which risk was inherent in the administration
of xylocaine anaesthesia and with which emergency the respondent No. 2 could not
cope either due to lack of professional skill, negligence or absence of life saving drugs.
On the other hand, on behalf of the respondents it was canvassed that there was no
negligence on the part of the respondents in rendering the services. The patient was
treated, by keeping the history of the patient, the diagnosis in the relevant
circumstances and the benefit of the patient, in mind. We have given our careful
thought to the relevant contentions of the parties. The State Commission after perusal
of the entire record and taking into consideration the relevant factors, came to the
conclusion that there was no negligence on the part of the respondents in rendering
service. The State Commission in support of its finding elaborately discussed the
material placed on record by the parties. We find that the respondent No. 2 had taken
all necessary precautions and effective measures to save Shanta. She requisitioned
services of Dr. Sood , Dr. Parulekar, Dr. Parikh and Dr. Raghavan. All of them made
frantic efforts to save the deceased. Dr. Sood, Dr. Raghavan and Dr. Parulekar had filed
affidavits wherein they categorically denied that there was any negligence in rendering
services by the opposite party No. 2. Dr. Sood was a Consulting Surgeon in ENT. Dr.
Raghavan was Anaesthetist, Dr. Parekh another Anaesthetist and Dr. Madhekar was a
General Physician. It is also in evidence that all the four Doctors had arrived before the
death of Shanta. From the record it also appears that the necessary medicines were
administered to Shanta and other possible efforts were made to revive her. Shanta
developed convulsion and lost her B.P. and pulse before commencement of the
operation. It is also in evidence that Shanta was taken into operation theatre and she
was given 4% xylocaine, 5 ml. injection. Prior to the administration of that injection,
test dose of 0.25 c with 2% xylocaine was given on the right forearm of Shanta. The
State Commission had rightly relied upon the operation notes. Nothing had been
brought on the record to show that the operation notes were fabricated and were
prepared after the death of Shanta. In these circumstances, the State Commission was
justified in relying upon those notes. Five Doctors have filed their affidavits in support
of the case of opposite party No. 2.
It appears from the record that the complainant did not requisition the services of any
expert to support his allegations. In the absence of any expert evidence on behalf of the
complainant, the State Commission was right in relying upon the affidavits filed by the
four doctors on behalf of the respondents. In our view, the State Commission was right
in holding that there was no negligence on the part of the respondents. The State
Commission rightly analysed and appreciated the materials placed on the record. The
State Commission arrived at the finding after taking into consideration the totality of the
circumstances. No case is made out by the appellant for interference with the order
passed by the State Commission.
As a result of above discussion, it follows that the appeal is devoid of merit and it
deserves dismissal. We order accordingly. We make no order as to costs.

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http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 2

CASE NO.:
Appeal (civil) 2743 of 2002

PETITIONER:
State of Haryana & Ors.

RESPONDENT:
Raj Rani

DATE OF JUDGMENT: 29/08/2005

BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K. Balasubramanyan

JUDGMENT:
J U D G M E N T
With

C.A. No. 1359 of 2005

C.A. No. 5316 of 2005 (@ SLP (c) No. 3106/2004)
C.A. No. 5312 of 2003
C.A. No. 6272 of 2003
C.A. No. 6417 of 2002

R.C. Lahoti, CJI

Leave granted in SLP (C) No. 3106/2004.

In all these appeals, it is not necessary to notice the facts

of individual cases. It would suffice to state that in all these
cases, the plaintiff, a woman, had undergone a sterilization
operation performed by a surgeon in the employment of the
State of Haryana. Subsequent to the performance of the
surgery, the woman became pregnant and delivered a child.
Suit was filed against the doctor who had performed the surgery,
claiming compensation based on the cause of action of
’unwanted pregnancy’ and ’unwanted child’, attributable to the
failure of the surgery. State of Haryana was impleaded, claiming
decree against it on the principle of vicarious liability. The suits
have been decreed and such decrees have been put in issue by
filing these appeals by special leave.

A 3-Judge Bench of this Court has held in State of Punjab

v. Shiv Ram & Ors. (C.A. 5128 of 2002 decided on August 25,
2005) that child birth in spite of a sterilization operation can
occur due to negligence of the doctor in performance of the
operation, or due to certain natural causes such as spontaneous
recanalisation. The doctor can be held liable only in cases where
the failure of the operation is attributable to his negligence and
not otherwise. Several textbooks on medical negligence have
recognized the percentage of failure of the sterilization operation
due to natural causes to be varying between 0.3% to 7%
depending on the techniques or method chosen for performing
the surgery out of the several prevalent and acceptable ones in
medical science. The fallopian tubes which are cut and sealed
may reunite and the woman may conceive though the surgery
was performed by a proficient doctor successfully by adopting a
technique recognized by medical science. Thus, the pregnancy
can be for reasons de hors any negligence of the surgeon. In
the absence of proof of negligence, the surgeon cannot be held
liable to pay compensation. Then the question of the State
being held vicariously liable also would not arise. The decrees
cannot, therefore, be upheld.

However, the learned counsel for the appellant-State

stated at the very outset that the plaintiffs in
all these cases arepoor persons and the State was
not interested in depriving the decree-holders of
the payment made in satisfaction of the
decrees but the State was certainly interested
in having the question of law settled. The
stand taken by the appellant-Statehas been that
in spite of the decrees under appeal having
been set aside, any payment already made
thereunder would be
treated by the State as ex gratia payment.

In view of the law laid down in State of

Punjab v. ShivRam & Ors.,(supra) all
these appeals are allowed. The
judgments and decrees under appeals are set aside.
All the suits filed by the plaintiffs-respondents
are dismissed. There will be no order as to costs
throughout. However, any amount paid by the
appellant-State to the plaintiffs-decree holders
shall not be liableto be refunded by way of
restitution.
 STATEMENT OF VERIFICATION

I the counsel for the defendant hereby declare that the

information provided above is true to the best of my
knowledge, SO HELP ME GOD.

Humble Defendant
Through Counsel