Holding

The doctor was not guilty of medical negligence; the Commission’s award was set aside.

Summary

The appellant, a nephrologist, treated a patient with chronic renal failure, severe urinary and blood infections, and high urea levels. He prescribed Amikacin, a potent antibiotic, after culture sensitivity showed resistance to other drugs, and warned the patient to stop it when tinnitus appeared. The patient continued the drug against advice, later claimed hearing loss, and the National Consumer Disputes Redressal Commission awarded compensation for alleged medical negligence. On appeal, the Supreme Court applied the Bolam test and held that the doctor acted within the standard of care expected of a reasonably competent specialist, especially in an emergency, and that the patient’s non‑cooperation broke the causal chain. The Court set aside the Commission’s award, finding no negligence, and warned courts and police to seek expert medical opinions before proceeding against doctors.

Issues considered

Whether the doctor’s prescription of Amikacin constituted medical negligence under the Consumer Protection Act, 1986.
Whether the standard of care applicable to a specialist in an emergency was breached.
Whether the patient’s continuation of the drug after being advised to stop broke the chain of causation.
Whether criminal liability under IPC s.304A could arise from the alleged negligence.
Whether the Consumer Forum should refer matters to a competent medical expert before issuing notice.

Legislation cited

Consumer Protection Acts. 23
Indian Medical Council Acts. 20A, s. 3(m)
Indian Penal Code, 1860s. 304A

Subjects

medical negligenceconsumer protectionBolam teststandard of careemergency treatmentototoxicityprofessional liabilitypatient non‑cooperation

Judgment

- -1
(2009] 3 S.C.R. 273

MARTIN F. D'SOUZA A
v.
MOHD. ISHFAQ
(Civil Appeal No. 3541 of 2002)
FEBRUARY 17, 2009
B
[MARKANDEY KATJU AND R.M. LODHA, JJ.]
"'
"" CONSUMER PROTECTION ACT, 1986:

Services of Doctors - Medical negligence - Patient
suffering from renal failure - Already undergoing c
haemodialysis - Treatment - Certain medicines prescribed
- Patient complaining hearing impairment - Approaching
·~, National Consumer Disputes Redressal Commission for
k;,.,
compensation - Commission allowing the complaint and
-+
awarding compensation -Appeal by Doctor- Held: Since the D
patient was not only suffering from renal failure, but also from
urinary tract infection and blood infection, as also high urea,
the doctor had naturally to take a drastic measure to attempt
to save the life of the patient - Situation was aggravated by
the non-cooperation of the patient - Extraordinary situations E
require extraordinary remedies - If the Doctor chose to save
the life of the patient rather than his hearing surely he cannot
~ " be faulted - Thus in the facts of the case, the doctor was not
guilty of medical negligence - Consumer Fora/Criminal Court
should first refer the matter to a competent doctor or F
Committee of doctors specialized in the field and when prima
facie case of medical negligence is attributed, then only issue
notice to a doctor or hospital against whom complaint made
- Direction issued - Warning to police officials not to arrest
doctors in such cases unless the facts clearly come within the G
..,- "' parameters laid down in Jacob Mathew's case - Penal
Code, 1860, s.304A - Negligence.
This appeal has been filed by a Doctor, whose
273 H
274 SUPREME COURT REPORTS [2009) 3 S.C.R.

A patient had alleged medical negligence against him
leading to hearing impairment and got certain amount of
compensation from the National Disputes Redressal
Commission.
Allowing the appeal, the Court
B
HELD:1.1. 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
c 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 or operates on the
D wrong part of the body, and he would be also criminally .
liable if he operates on someone for removing an organ
for illegitimate trade. [Para 41] [295-F-H; 296-A]
1.2. There is a tendency to confuse a reasonable
person with an error free person. An error of judgment
E may or may not be negligent. It depends on the nature
of the error. 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
F professional opinion, equally competent, which supports
the decision as reasonable in the circumstances. [Paras
42 and 43] [296-A-C]
Jacob Mathew vs. State of Punjab and Anr. (2005) 6
SCC 1; Bo/am vs. Friern Hospital Management Committee
G (1957) 1 WLR 582 and Achutrao Haribhau Khodwa & others " .....
vs. State of Maharashtra & others, AIR 1996 SC 2377, relied
on.
Eckersley vs. Binnie (1988) 18 Con LR 1, referred to.
H
-
--1
MARTIN F. D'SOUZA v. MOHD. ISHFAQ

Hunter vs. Hanley 1955 SLT 213, referred to.
275

A
2.1. 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 8
available at that point of time. [Para 44] [296-E-F]
"
2.2. 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 c
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 greate~ chances of success for the patient D
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.
E
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. [Para 45] [296-F-H;
297-A-B]
F
2.3. 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, G
~- )
should the doctor be held liable? 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 H
276 SUPREME COURT REPORTS [2009] 3 S.C.R.
I -

A it is advisable for the doctor to explain the situation to the
patient and take his written consent. [Para 46) [297-B-D]
2.4. 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
B 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
C cost him dear in his lapse. [Para 47] [297-E-F]
3.1. 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
0
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
E appeared in it and made his submissions. [Para 49) [298-
E-F]
3.2. 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
F 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, but for convicting a doctor in a criminal case,
it must also be proved that this negligence was gross
G amounting to recklessness. [Para 50) [298-F-H; 299-A]
4.1. From the principles and decisions relating to
. -~

medical negligence, 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,
H and not a bloodhound, and as long as doctors do their
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 277

duty with reasonable care they will not be held liable even A
if their treatment was unsuccessful. 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
8
under Section 20A read with Section 3(m) of the Indian
Medical Council Act, 1956. [Paras 73 and 74] [308-F-H;
309-A]

4.2. The basic principle relating to the law of medical
negligence is the Bolam Rule. The test in fixing negligence C
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. [Para 76] [309-
.,, C-D]
Indian Medical Association vs. V.P. Shantha 1995(6) D
sec 651, relied on.
Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC
332; Dr. Shiv Kumar Gautam vs. Alima, Revision Petition
No.586 of 1999 decided by National Consumer E
Commission; 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; Pt. Parmanand Katara
vs. Union of India & Others AIR 1989 SC 2039; Paschim
Banga Khet Mazdoor Samity and others vs. State of West F
Bengal and Another AIR 1996 SC 2426; Md. Suleman Ansari
(D.M.S.) vs. Shankar Bhandari (2005) 12 SCC 430; Surendra
Chauhan vs. State of M.P. (2000) 4 SCC 11 O; State of
Haryana and others vs. Raj Rani (2005) 7 SCC 22; State of
Punjab vs. Shiv Ram & others (2005) 7 SCC 1; State of G
Haryana and Others vs. Smt. Santra AIR 2000 SC 1888; P.N.
Rao vs. G. Jayaprakasu AIR 1990 AP 207; Dr. Laxman
Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Another
AIR 1969 SC 128; Dr. Suresh Gupta vs. Government of
N.C. T. of Delhi and another AIR 2004 SC 4091; Nihal Kaur H
SUPREME COURT REPORTS [2009) 3 S.C.R.
278

A vs. Director, P.G.l.M.S.R. (1996) CPJ 112; Spring Medows
. -

Hospital & Another vs. Harjo/ Ahluwalia thr' K. S. Ahluwalia &
Another (1998) CPJ 1; Consumer Protection Council and
Others vs. Dr. M. Sundaram and Another (1998) CPJ 3;
Sethuraman Subramaniam Iyer vs. Triveni Nursing Home
B and Another (1998) CPJ 11 O; A. S. Mittal & Anr. vs. State of
U.P. & Ors. JT 1989 (2) SC 419, 1989 (3) SCC 223, referred
to. "
5.1. The respondent already had high Blood
Creatinine, Blood Urea and low Haemoglobin before the
c 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
D 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
E 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 y

day for his serious Blood Infection and he was also
transferred one Unit of Blood during dialysis and his
F temperature subsided rapidly and he felt much better.
[Para 85] [311-F-G; 312-A-B]
5.2. 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
G 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
H hospital on his own on 8.6.1991 at 9 a.m. In view of his
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 279

insistence the respondent was discharged from the A
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
8
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 certain drugs under the supervision of
the doctor when he would visit the dialysis unit. The drugs C
included Injection Amikacin 500 mg twice a day x 10 days
for urinary tract infection. [Paras 86 and 87] [312-B-F]

.' 5.3. It appears that the respondent attended the
Haemodyalsis unit where he met the appellant on 11th, D
14th, 18th and 20th June, 1991. Thereafter the respondent
did not come to the hospital. 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 E
respondent and asked the respondent and also verbally
told his attendant i.e. his wife to stop Injection Amikacin
• and Cap. Augmantine, 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 F
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 G
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. [Paras 88 and 89] (313-8-E]
5.4. On perusal of the Xerox copies of the papers of
H
A
280 SUPREME COURT REPORTS (2009] 3 S.C.R.

the Cash Memo supplied by the respondent as per
. -

annexure '4' it is 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
B 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. 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
c 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. [Paras 90 and 91) [313- i .
F-H; 314-A] •
D
5.5. 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
E 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. [Para 92) [314-B-C)

5.6. It is evident from the fact that the respondent
F
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
G not cooperate. [Para 93) [314-C-D] . ·~

6.1. 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
H before the Commission have stated that the appellant
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 281
-·-'
was not negligent. [Para 106] [319-B-C] A
6.2. There is no reason to disbelieve the 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. Hence, it was B
... the respondent himself who is to blame for having
continued Amikacin after 11.6.1991 against the advice of
the appellant. [Para 108] [320-B-D]

7.1. The Commission, which consists of laymen in the c
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
D
of several other doctors who have stated that the
appellant acted correctly in the situation he was faced.
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- E
• jacketed formula, and cannot be penalized for departing
' from that formula. [Paras 111 and 112] [321-A-D]
7.2. While this Court has no sympathy for doctors
.--. who are negligent, it must also be said that frivolous F
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
L' > when a patient who had a symptom of having a heart G
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
H
282 SUPREME COURT REPORTS (2009] 3 S.C.R.

A 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 doctors who
administer the Morphia or Pethidine injection are often
blamed and cases of medical negligence are filed against
B 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
c ifproceedings.
the patient died the doctor would have to face legal
[Para 113] [321-D-H; 322-A]

7.3. 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 start
D 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.
E [Para 114] [322-A-C]

7.4. 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
F
Indian Medical Association vs. V.P. Shantha 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. [Para 115] [322-C-D]
G
Indian Medical Association vs. V.P. Shantha 1995 (6) ' -.
sec 651, relied on.
8.lt may be mentioned that the All India Institute of
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 283

-"
Medical Sciences has been doing outstanding research A
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
B
progress. [Para 116] [322-F-G]
,.
..; 9.1. 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 c
whom the complaint was made the Consumer Forum or
Criminal Court should first refer the matter to a competent
doctor or committee of doctors, specialized in the field
relating to which the medical negligence is attributed, and
only after that doctor or committee reports that there is a D
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. This Court further
warns the police officials not to arrest or harass doctors E
unless the facts clearly come within the parameters laid
down in Jacob Mathew's case, otherwise the policemen
will themselves have to face legal action. [Para 117] [322-
H; 323-A-C]

-· 9.2. In the present case the appellant was faced with F
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. Hr,wever, the respondent was not only
,,.. :. suffering from renal failure but he was also suffering from G
urinary tract infection and also blood infection i.e.
Septicaemia which is blood pois9ning caused by bacteria
or a toxin. He had also ext~emely high urea. In this
extremely serious situation, the appellant had naturally to
H
....

284 SUPREME COURT REPORTS [2009) 3 S.C.R.

,-
A 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.
8 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. [Para 118] [323-C-G]

C 9.3. 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
D 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. [Para 121]
[324-C-D]

E 10.1. 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
F entire medical fraternity cannot be blamed or branded as
aacking in integrity or competence just because of some
bad apples. [Para 123] [324-F-G]
10.2. It must be remembered that sometimes despite
G 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
H suggest that he is. On the facts of this particular case, the
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 285

- . impugned judgment and order of the National A
l. Commission is set aside. [Paras 124 and 125] [324-H;
324-A-C]

Case Law Reference:
(2005) 6 sec 1 relied on Para 30 B
(1957) 1 WLR 582 relied on Para 38
..
(1988) 18 Con LR 1 referred to Para 40

AIR 1996 SC 2377 relied on Para 41
c
1955 SLT 213 referred to Para 43
(1996) 4 sec 332 referred to Para 53
AIR 1989 SC 2039 referred to Para 55
-1
D
AIR 1996 SC 2426 referred to Para 59
(2005) 12 sec 430 referred to Para 60
(2000) 4 sec 11 o referred to Para 61
(2005) 1 sec 22 referred to Para 62 E

(2005) 1 sec 1 referred to Para 62
l
AIR 2000 SC 1888 referred to Para 62
AIR 1990 AP 207 referred to Para 63 F
AIR 1969 SC 128 referred to Para 64

I
AIR 2004 SC 4091 referred to Para 65

..,. . (1996) CPJ 112
(1998) CPJ 1
referred to
referred to
Para 67
Para 68
G

(1998) CPJ 3 referred to Para 69
(1998) CPJ 110 referred to Para 70
H
286 SUPREME COURT REPORTS (2009] 3 S.C.R.

A JT 1989 (2) SC 419 =
1989 (3) sec 223 referred to Para 71

1995(6) sec 651 relied on Para 72

B CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3451 of 2002.

From the final Judgment and Order dated 22.3.2002 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 178 of 1992.
c
Manu Aggarwal, Manik Karanjawala and Pragya Ohri for
the Appellant.

Mala Goel and Asheesh Kumar Mishra (for Rajinder
Mathur) Goel for the Respondents.
D
The Judgment of the Court was delivered by

MARKANDEY KAT JU, J. 1. This appeal against the
judgment of the National Consumer Disputes Redressal
E 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.

F 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
G 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
H haemodialysis twice a week on account of chronic renal failure.
_,
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 287
[MARKANDEY KAT JU, J.]
_.,
Investigations were underway to find a suitable donor. The A
respondent wanted to be operated by Dr. Sonawala alone who
was out of India from 1.6.1991to1.7.1991.

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 B
advice of the appellant. Hence, a broad spectrum antibiotic was
•· prescribed to him.
J
7. From 20.5.1991 to 29.5.1991, the respondent attended
the Haemodialysis Unit at Nanavati Hospital on three c
occasions. At that time, his fever remained between 1010-
1040F. 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
1040F finally agreed to get admitted to hospital due to his D
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 E
4.3%. The following chart indicates the results of the study in
'
l
comparison to the normal range :-

< ' Normal Range

S. Creatinine 13.0 mgs. % 0.7 - 1.5 mgs. % F
i
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 G
~.- i.
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.
H
l~

288 SUPREME COURT REPORTS [2009] 3 S.C.R.
...
A 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 )•
B other antibiotics. Methnamine Mandelate cannot be used in J-
)or-
patients suffering from renal failure.

12. On 4.6.1991, the blood culture report of the respondent l
was received, which showed a serious infection of the blood
stream (staphylococcus species).
c
13. On 5.6.1991, Amikacin injection was administered to
the respondent for three days (from 5th to 7th June, 1991 ),
since the urinary infection of the respondent was sensitive to ~

Amikacin. Cap. Augmentin (375 mg.) was administered three
D times a day for the blood infection and the respondent was
transfused one unit of blood during dialysis. Consequent upon
the treatment, the temperature of the respondent rapidly
subsided. ·
i=
14. From 5.6.1991 to 8.6.1991, the respondent insisted
E 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
F 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
G the supervision of the appellant when he visited the Dialysis
"'
Unit. .1 -.

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
H he immediately told the respondent to stop taking the Amikacin
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 289
[MARKANDEY KAT JU, J.)

and Augmentin and scored out the treatment on the discharge A
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.
B
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 to Prince Aly Khan Hospital, where he was also C
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 .
. I
19. On 30. 7.1991, the respondent was operated upon for
transplant after he had ceased to be under the treatment of the D
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 E
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 F
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
..,, ii Commission (hereinafter referred to as 'the Commission') G
passed an order on 6.10.1993 directing the nomination of an
expert from the All India Institute of Medical Sciences, New
Delhi (AllMS) to examine the complaint and give an opinion.
This was done in order to get an unbiased and neutral opinion.
H
290 SUPREME COURT REPORTS [2009] 3 S.C.R.
...
A 22. AllMS 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
B 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.
C 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. lshfaq

(ii) The wife of the respondent
D
(iii) Dr. Ashok Sareen

(iv) Dr. Vindu Amitabh

24. On behalf of the appellant, six affidavits by way of
E 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
F 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:-

G
(i)

(ii)
The appellant-Dr. M.F. D'Souza

Dr. Danbar .. ,

(iii) Dr. Upadhyay
(iv) Mrs. Mukta Kalekar
H (v) Dr. Ashique Ali Rawal
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 291
[MARKANDEY KATJU, J.]
, ...
25. The respondent also filed an opinion of the Chief of A
Nephrology at Fairview General Hospital, Cleveland, Ohio,
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 B
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 c
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 D
at the time of admission of the respondent on 29.5.1991 to the
hospital, he had fever of 1040F 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
E
3rd and 4th June, 1991, which showed the respondent resistant
to other antibiotics. Even the witness of the respondent (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% F
from 1.8.1992 as well as R,s.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. G
~ ..
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
H
292 SUPREME COURT REPORTS [2009) 3 S.C.R.

"' .
A 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.
B (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 :

c "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."

D 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.

E 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
F 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 Consµmer Fora). However, what is simple negligence and
what is gross negligence may be a matter of dispute even
among experts.

G 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
H principles relating to medical negligence need to be
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 293
[MARKANDEY KAT JU, J.]
# -l

understood. A

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
B
negligence. Moreover, Judges have usually to rely on
J.
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 c
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 D
,-•
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. E

36. Keeping the above two notions in mind we may discuss
the broad general principles relating to medical negligence.
~

General Princigles Relating to Medical Negligence
F
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

,.. .. G
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 Bo/am vs. Friern Hospital Management
Committee (1957) 1 WLR 582 as follows:
H
294 SUPREME COURT REPORTS [2009] 3 S.C.R.
)- ~

A "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
B skilled man exercising and professing to have that
special skill. A man need not possess the highest expert
skill..... It is well-established law that it is sufficient if he
exercises the ordinary skill of an ordinary competent man
exercising that particular art."
c 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 : •
D
"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
E 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
F 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
G 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
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 295
[MARKANDEY KATJU, J.]

ordinary care." A
(emphasis supplied)

40. Eckersley vs. Binnie (1988) 18 Con LR 1 summarized
the Bolam test in the following words : ·
B
"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 C
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
0
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 E
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 F
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. G
For instance, he would be liable if he leaves a surgical gauze
inside the patient after an operation vide Achutrao Haribhau
Khodwa and others vs. State of Maharashtra and 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 H
296 SUPREME COURT REPORTS [2009] 3 S.C.R.

A 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.

B 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
C 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
D
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 .... "
E
(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
F 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
G 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
H honestly believes as providing greater chances of success for
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 297
[MARKANDEY KATJU, J.]
... ;

• the patient rather than a procedure involving lesser risk but A
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 B
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 c
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
·-t experimentation, but experiments sometime end in failure e.g.
the operation on the Iranian twin sisters who were joined at the D
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.
E
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
F
'·-
professional reputation of the professional would be at stake.
A single failure may cost him dear in his lapse.
48. As observed by the Sup~eme Court in Jacob Mathew's
case: G
"A medical practitioner faced with an emergency
ordinarily tries his best to redeem the patient out of hi!S
suffering. He does not gain anything by acting with
negligence or by omitting to do an act. Obviously, therefore, H
298 SUPREME COURT REPORTS (2009] 3 S.C.R.

A 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
B 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
c an essential surgery, nor can a physician successfully
administer the life-saving dose of medicine. Discretion being
the better part of valour, a medical professional would feel
better advised to leave a terminal patient to his own fate in
the case of emergency where the chance of success may be ,.
D 10% (or so), rather than taking the risk of making a last 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
E
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
F 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
G 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 com1icting a doctor in a criminal case, it must
H also be proved that this negligence was gross amounting to
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 299
[MARKANDEY KATJU, J.)
>·'
recklessness. A
-,
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
B
. 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?
c
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
D

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 E
some harm vide Poonam Verma vs. Ashwin Patel and Ors.
(1996) 4 SCC 332. In Or. Shiv Kumar Gautam vs. Alima,
i
• 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 F
administering glucose drip and giving injections.
~

Protection to Doctors in Criminal Cases

54. In para 52 of Jacob Mathew's case the Supreme Court
r _. realizing that doctors have to be protected from frivolous G
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 H
300 SUPREME COURT REPORTS [2009) 3 S.C.R.
' ....
A 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
B 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
c 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 i .
._
D 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.
E
Precautions which Doctor/Hospitals/Nursing Homes
should take : •
(a) Current practices, infrastructure, paramedical and '
F 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 26th and 28th .,
G f
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
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 301
[MARKANDEY KATJU, J.]
;.~-.

- sterilization of instruments, cotton, pads, linen, etc.,
and the damage occurred because of its absence
in working condition. The doctors were held
liable.
A

(b) No prescription should ordinarily be given without
actual examination. The tendency to give B
' 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 c
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
D
consent from the patient.
(e) An expert should be consulted in case of any
doubt. Thus, in Smt. lndrani Bhattacharjee,
Original Petition No.233 of 1996 decided by the
National Consumer Commission on 9.8.2007, the E
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
(f) Full record of the diagnosis, treatment, etc. should
be maintained.
Application of the <1_t?ove mentioned general principles to
,,- ~
particular cases : G
Decisions of the Court
55. In Pt. Parmanand Katara vs. Union of India and Others
AIR 1989 SC 2039, the petitioner referred to a report published
in the newspaper "The Hindustan Times" in which it was H
302 SUPREME COURT REPORTS [2009] 3 S.C.R.

" ""
.
A mentioned that a scooterist was knocked down by a 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
B 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
c 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
D 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
E 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
F 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, as is mentioned in George
G 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 have forgotten
H their Hippocratic oath. Since most people in India are poor the
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 303
;..-;
[MARKANDEY KATJU, J.]

consequence is that for them proper medical treatment is next A
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
B
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. c
60. In Md. Su/eman Ansari (D.M.S.) vs. Shankar Bhandari
.. (2005) 12 sec 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 D
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
E
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 F
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 of anesthesia.
The Supreme Court confirmed his sentence but reduced it to G
)('
• 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 H
304 SUPREME COURT REPORTS [2009] 3 S.C.R.

A 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 and others (2005) 7
B 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.
c 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 (.
D 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
E 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
F 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
G 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. Or. Trimbak Bapu
H Godbole and Another AIR 1969 SC 128, a patient had suffered
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 305
[MARKANDEY KATJU, J.]
;_ ...
from fracture of the femur. The accused doctor while putting the A
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 B
held that the doctor was liable to pay damages to the parents

- i. of the boy.

65. In Dr. Sure sh 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 c
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 D
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 E
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 F
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 can be described as G
,,,. • totally apathetic towards the patient.

66. In Dr. Sr. Louie and Anr. vs. Smt. Kanno/ii Pathumma
and Anr. the National Consumer Commission held that Dr.
Louie showed herself as an M .D. although she was only M .D.
H
306 SUPREME COURT REPORTS [2009] 3 S.C.R.

~ .....
A 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. 1-

67. In Niha/ Kaur vs. Director, P.G./.M.S.R. (1996) CPJ
B
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.
c
68. In Spring Medows Hospital and Another vs. Harjo/
Ahluwalia thr' K.S. Ahluwalia and 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 ,..
D 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
E 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
F
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.

G 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
H was referred to another doctor who was an ENT specialist, who
_.. MARTIN F. D'SOUZA v. MOHD. ISHFAQ 307
,,,., . [MARKANDEY KATJU, J.]
after examination opined that no lymph ~lands were seen. A 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 8
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 c
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
_ _, "·· i decision, held that there was no negligence on the part of the
D
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 E
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 F
_, 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. G
.,. • 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
-I Commission relied on the affidavits of four doctors who opined
H
308 SUPREME COURT REPORTS [2009) 3 S.C.R. p

A that there was no negUgence. 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 and Anr. vs. State of UP. and Ors. JT
8 1989 (2) SC 419, 1989 (3) sec 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
C 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
D 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;
E
(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 •
F 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
G 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,
H carefully read the Code of Medical Ethics which is part of the
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 309
[MARKANDEY KATJU, J.]
Indian Medical Council (Professional Conduct, Etiquette and A
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 B
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.
c
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
•l skill, but a doctor need not possess the highest expert skill. D
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
E
haemodialysis twice a week on that account. He was suffering
from high fever which remained between 1010-1040F. 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 F
,' 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 G
L~ i
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 H
310 SUPREME COURT REPORTS [2009] 3 S.C.R.

A 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
B 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
C 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 refe~red the complainant to the
appellant is an indication that the appellant has a good
D 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.
E
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, <
F 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
G 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.
H Soonawalla was out of India from 1.6.1991 to
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 311
[MARKANDEY KAT JU, J.]
.__.,. 'cf

1.7.1991. On 20.5.1991, the complainant approached the A
appellant with high fever of 101-1030F, 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 B
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 c
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
·l
_,
<
condition having high fever of 1040F. After much persuasion D
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 E
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
F

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. G
""*'... 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,
H
312 SUPREME COURT REPORTS (2009] 3 S.C.R.

' .~.,,

A 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
B 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.
c 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
9a.m ..
D
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
E 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
F
doctor when he would visit the dialysis unit:
"1. Injection Amikacin 500 mg twice a day x 10 days
-
for urinary tract infection.

G 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
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 313
[MARKANDEY KATJU, J.]

5. Syrup Alludux A
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 8
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 C
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. D
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 E
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 F
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
G

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 H
314 SUPREME COURT REPORTS (2009] 3 S.C.R.

A 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.
8 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
c 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
....
D 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
E 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 AllMS as requested by the Commission, which
is also on record. It has been stated by Dr. Ghosh that many
F 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
G 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
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 315
[MARKANDEY KATJU, J.]
-'\. "\

use of Aminoglycoside antibiotics (e.g. Amikacin) and loop A
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. B
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 c
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.
_.. D
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 E
of the All India Institute of Medical Sciences, we are clearly of
the view that the appellant was not guilty of medical negligence
-4 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 F
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 '..lave the life of the respondent.
G
... • 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
C\dical negligence this Court has to exercise great caution.
H
316 SUPREME COURT REPORTS [2009) 3 S.C.R.

A 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
B 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
c 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 '
D '"
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
E Amikacin is given for 5 to 7 days twice daily. However, he has
also stated that in severe circumstances it can be given for a
longer period but if the patient is developing complications then
the dpses should be stopped immediately. If there is no
substitute for it then Amikacin should be given in a very
F 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
G 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
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 317
[MARKANDEY KATJU, J.]

of interpreter and he did not complain of suffering any hearing A
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. B
'
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:-
c
"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 D
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 E
its appearance. I state that in this situation, 'Amikacin' could
not have been avoided if the danger to the life of 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. lshaq, who was suffering from a renal failure in F
addition to the above specific infections appears to be
correct."

104. The appellant has also filed his own affidavit before
the National Consurner Commission which we have perused.
We have also seen the affidavit of Dr. Ashok L. Kirpalani of G
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
'nfection. H
318 SUPREME COURT REPORTS [2009] 3 S.C.R.

A 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
B
and who is attached to the said hospital since 1984. I say
that I know Mr. Mohd. lshaq. I distinctly remember him, as
very few patients are as ill-tempered arrogant and
obstinate like him. The said Mohd. lshaq came to the said
hospital as an outdoor as well as indoor patient for
c Haemodialysis on a number of occasions commencing
from the month of April, 14th 1991 till 20th June, 1991 till
8th June, 1991 until suo moto he left the hospital. I say that
on 11th June, 1991 the said Mohd. lshaq came to the
hospital for the purpose of Haemodialysis. He had come
D 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. lshaq and
E verified the medicine and injections which were prescribed
and on 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
F staff members not to give that injection at all, and also told
the said Mohd. lshaq 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. lshaq
came to the hospital as an outdoor patient on 14th June,
G 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 an
ordinary man. The said Mohd. lshaq used to come to
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 319
~>• •
[MARKANDEY KATJU, J.]
hospital on his own without the assistance or help of A
anybody and after the dialysis also he used to go on his
own. Thus, until 20th June, 1991, the said Mohd. lshaq 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." 8

-
----4

...
t 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.
c
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
D
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 E
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 F
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 G
~
' 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
H
320 SUPREME COURT REPORTS [2009] 3 S.C.R.
.....
A 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
B 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
C 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 11.6.1991 against

D
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
E 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
F
1991.
110. The National Commission had sought the assistance
of AllMS to give a report about the allegations of medical
negligence against the appellant. AllMS had appointed Dr.
G 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.
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 321
...... <
[MARKANDEY KATJU, J.]
111. We have carefully perused the judgment of the A
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, B
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. c
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
D

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, E
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 F
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
G

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 H
322 SUPREME COURT REPORTS [2009] 3 S.C.R.
> ~

A 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 start giving first aid
B 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.
c 115. Hence Courts/Consumer Fora should keep the above
I-

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
D 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) :-

E "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." ...............
F
116. It may be mentioned that the All India Institute of
Medical 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,
G 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
H (whether District, State or National) or by the Criminal Court
-.. MARTIN F. D'SOUZA v. MOHD. ISHFAQ 323

- ' [MARKANDEY KATJU, J.]
then before issuing notice to the doctor or hospital against A
whom the complaint was made the Consumer Forum or
Criminal Court should first refer the matter to a competent
doctor or committee of doctors, specialized in the field relating
to which the medical negligence is attributed, and only after that
doctor or committee reports that there is a prima facie case of B
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 c
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 D
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 E
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 F
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 G
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

H
324 SUPREME COURT REPORTS [2009] 3 S.C.R.
' .A

A 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
B 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
c 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
D
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.
E 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.
F 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

' ...
G 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
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ 325
[MARKANDEY KATJU, J.]

best efforts the treatment of a doctor fails. For instance, A
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.
8
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.
G.N. Appeal allowed. c