MRS. KALYANI RAJANversusINDRAPRASTHA APOLLO HOSPITAL & ORS.

                  [2023] 15 S.C.R. 97 : 2023 INSC 921



                            CASE DETAILS
                        MRS. KALYANI RAJAN
                                     v.
          INDRAPRASTHA APOLLO HOSPITAL & ORS.
                    (Civil Appeal No. 10347 of 2010)
                           OCTOBER 17, 2023
   [A. S. BOPANNA AND PRASHANT KUMAR MISHRA, JJ.]
                              HEADNOTES
      Issue for consideration: Whether the respondents have committed
negligence in not providing proper post-operative medical care to the patient
and, accordingly, whether the NCDRC has committed any illegality while
dismissing the complaint filed by the appellant herein.
     Consumer Protection Act, 1986 – Complainant-appellant, husband
(patient) was suffering from Chiari Malformations (Type II) with
Hydrocephalous – Patient underwent neurosurgery after which he
was shifted to a private room – However, same day around 11:00 p.m.,
patient suffered a heart attack and consequent to which he died after
few days – Complainant alleged apropos lack of medical care from the
time he was shifted to the private room – The NCDRC rejected the
complaint of the complainant – Propriety:
      Held: It is not the case of the complainant that respondent no.2-doctor
was negligent in performing the Neurosurgery – Thus, the entire case of
the complainant was about lack of proper post-operative medical care –
On this score, the allegation is that the patient should have been shifted to
ICU instead of shifting him to a private room – The material available on
the record demonstrates that as per the standard practice, all patients who
show no signs of complications in the recovery room and have no post or
pre-operative complications are sent to their rooms – The symptoms, which
emerged after the deceased was discharged from the Operation Theatre,
were not the symptoms, which typically precede a cardiac arrest – Since,
the deceased did not have any known or identifiable heart ailments, it was
impossible for the respondents to have prior knowledge that the patient

                                     97
98            SUPREME COURT REPORTS                          [2023] 15 S.C.R.


may develop cardiac problem after few hours of the successful surgery –
Also, materials placed before the Court show that patient was examined
by doctors after his surgery and all required steps were taken – There is
no evidence put forth by the complainant to establish that heart attack
suffered by the patient had any connection with the operation in question
or that it was on account of negligent post-operative care – Furthermore,
affidavit of professor of neurosurgery in AIIMS and Senior Consultant in
Neurology at respondent no.1-Hospital opined that the record did not show
any abnormality at the operated site and the complications suffered by the
patient were totally unrelated to the surgery conducted by respondent no.
2 – Therefore, the appellant has failed to establish negligence on the part
of Respondents in taking post-operative care and the findings in this regard
recorded by the Commission does not suffer from any illegality or perversity.
[Paras 23,25,32]
     Principle/Doctrine – Res Ipsa Loquitur – Applicability of:
      Held: In so far as the applicability of principles of Res Ipsa Loquitur, in
the fact and circumstances of the case, it is to bear in mind that the principles
get attracted where circumstances strongly suggest partaking in negligent
behaviour by the person against whom an accusation of negligence is made
– For applying the principles of Res Ipsa Loquitur, it is necessary that a ‘Res’
is present to establish the allegation of negligence – Strong incriminating
circumstantial or documentary evidence is required for application of the
doctrine – In the instant case, there was no mistake in diagnosis or a negligent
diagnosis by respondent no. 2 – In the absence of the patient having any
history of diabetes, hypertension, or cardiac problem, it is difficult to foresee
a possible cardiac problem only because the patient had suffered pain in the
neck region. [Para 31]
       LIST OF CITATIONS AND OTHER REFERENCES
     Bombay Hospital & Medical Research Centre v. Asha Jaiswal and
Others 2021 SCC online SC 1149; Malay Kumar Ganguly v. Dr. Sukumar
Mukherjee and Ors. [2009] 13 SCR 1 : (2009) 9 SCC 221: – relied on.
      Martin F. D’Souza v. Mohd. Ishfaq [2009] 3 SCR 273 : (2009) 3 SCC
1; Jacob Mathew v. State of Punjab and Another [2005] 2 Suppl. SCR 307
: (2005) 6 SCC 1: – referred to.
    MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                            99
                  HOSPITAL & ORS.


       OTHER CASE DETAILS INCLUDING IMPUGNED
              ORDER AND APPEARANCES
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10347 of
2010.
    From the Judgment and Order dated 03.08.2010 of the National
Consumer Disputes Redressal Commission, New Delhi in Original Petition
No.74 of 1999.
     Appearances:
     Nikhil Nayyar, Sr. Adv., T. V. S. Raghavendra Sreyas, Ms. Sugandha
Batra, Ms. Gayatri Gulati, Divyanshu Rai, Siddharth Vasudev, Advs. for
the Appellant.
    Ms. Meenakshi Arora, Sr. Adv., Ms. Radhika Gupta, Dr. Lalit Bhasin,
Ms. Nina Gupta, Ms. Ananya Marwah, Rahul Narayan, Adil Vasudeva,
Chander Tanay Chobe, Advs. for the Respondents.
       JUDGMENT / ORDER OF THE SUPREME COURT

                                   JUDGMENT

     PRASHANT KUMAR MISHRA, J.
     The present appeal is directed against the order passed by the National
Consumer Disputes Redressal Commission1 dated 03.08.2010 whereby
the complaint filed by the appellant and proforma respondent No. 3 under
Section 2 (c)(iii) of the Consumer Protection Act, 1986 2was rejected.
      2. The complainant-appellant is the wife of the deceased patient
namely, Sankar Rajan3, who was 37 years old and died on 06.11.1998 in
the hospital-respondent no. 1 herein while undergoing follow up care and
treatment after a major neurosurgery in the care of respondent nos. 1 and 2.
The deceased was under the employment of proforma respondent no. 3 and
was earning handsome annual package at the time of his demise.


1   (for short,‘the Commission’)
2   (for short, ‘the Act’)
3   (for short, ‘the deceased’)
100              SUPREME COURT REPORTS                     [2023] 15 S.C.R.


      3. The deceased was suffering from Chiari Malformations (Type II)
with Hydrocephalous. The deceased consulted Dr. Ravi Bhatia – respondent
no. 2, Senior Consultant, Department of Neurosurgery of respondent no.
1-hospital on 21.10.1998, who advised him to get admitted to respondent
no. 1-hospital where the surgery would be performed by him. As per the
advice of respondent no. 2, the deceased got himself admitted to respondent
no. 1 on 29.10.1998.After performing pre-operative medical examinations,
respondent no. 2conducted the operation of the deceased. The deceased
was thereafter shifted to private room at about 04.15 p.m and at about
04.30 p.m, the doctors visiting the deceased were informed about pain in
the neck region, which seemed to have transferred downward lower than
the region where pain used to occur prior to operation. At about 06.30 p.m.
the deceased was given pain reliever intravenously, but the pain increased
along with severe sweat spells. At about 09.15 p.m, the deceased started
suffering from severe unbearable pain. The complainant-appellant called
respondent no. 2 at his residential phone but he was not available. At about
09.30 p.m. another pain killer was intravenously given. At about 11.00
p.m. complainant-appellant talked to respondent no. 2 at his residence.
The deceased had suffered heart attack around 11.00 p.m. The deceased
was declared brain dead on 31.10.1998. He was kept on life support till his
death on 06.11.1998.
      4. The grievance of complainant-appellant is that the deceased was
not attended to by any doctor from neurosurgery team who had operated
the deceased after he was shifted into the private room till 11.00 P.M. After
such major surgery, instead of shifting to a private room, the deceased should
have been shifted to the Intensive Care Unit4.
       Findings of Commission (Impugned Order)
      5. The allegation in the complaint is mainly apropos lack of medical
care from the time he was shifted to the Private room till he suffered a
cardiac arrest at around 11:00 PM. However, the appellant herein has not
been able to establish by any cogent evidence or material on record that the
heart attack suffered by the deceased had any connection with the operation
in question or on account of lack of post-operative care.


4     (for short, ‘ICU’)
    MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                             101
    HOSPITAL & ORS. [PRASHANT KUMAR MISHRA, J.]

      6. The said finding has been supported by an affidavit of Prof. Gulshan
Kumar Ahuja who was professor of neurosurgery in AIIMS & Senior
Consultant at R-1/hospital at that time and he has opined that complications
suffered by the deceased were totally unrelated to the surgery conducted by
R-2. He has further stated that pain in the neck accompanied by symptoms
of profuse sweating and nausea cannot be a symptom of cardiac respiratory
arrest.
      7. The deceased did not have any history of diabetes or hypertension as
has been stated by R-2 herein in his evidence neither did he have any heart
problem. The said pain in the neck was on account of cervical operation. No
material on record to show that the deceased was in pain in any other region
of his body. The appellant’s contention apropos the deceased sweating is
not met out with in the medical records except for once at 9PM.
      8. The appellant herein drew the attention to the observation made in
Martin F. D’Souza v. Mohd. Ishfaq5 that no prescription should ordinarily
be given without actual examination and the tendency to prescription over
the phone except in acute emergency should be avoided. These observations
would not be applicable to the said present case since the deceased had
complained about pain on the neck for which he had been operated and
medicine given by Dr. Tyagi over the phone was only apropos pain on the
neck.
       9. In the facts and circumstances, no case of medical negligence has
been proved nor can it be said that the aftercare treatment of the deceased
till he suffered a cardiac arrest was inadequate so as to hold the respondents
herein liable for medical negligence. Principle of Res Ipsa Locutor does not
apply to the facts and circumstances of the said case.
     Submissions advanced on behalf of the Appellant apropos Medical
Negligence by the Respondents:
      10. Shri Nikhil Nayyar, learned senior counsel appearing for the
appellant submits that the deceased died due to cardiac arrest, albeit,
admittedly, the deceased had no cardiac problems. He would further submit
that at the time of admission the deceased was informed that after the surgery


5   (2009) 3 SCC 1
102           SUPREME COURT REPORTS                         [2023] 15 S.C.R.


he would be shifted to the ICU. However, he was shifted from the recovery
room directly to a private room and not to the ICU.
      11. In respect of lack of care, he submits that, Dr. Brahm Prakash & Dr.
S. Tyagi, visited the room at around 4.30 p.m. and the deceased mentioned
about pain in the neck region. The said complaint by the deceased was
dismissed as post operative symptom. The said visit was the only visit by
R-2 and other specialists post the surgery in the private room till the deceased
lost consciousness. Since the pain was not reducing, the Duty Doctor spoke
to Dr. Tyagi around 7.15 p.m. on telephone on the basis which Nimulid was
prescribed by Dr. Tyagi. Thereafter, Dr. Tyagi had a telephonic conversation
with the deceased wherein he was informed that Nimulid did give some
temporary relief, basis which he concluded that the symptoms of pain felt
by the patient were clearly normal post operative reaction.
      12. It is submitted that the patient had an episode of Ventricular
Tachycardia (‘VT’) and R-2 in his admission has stated that VT is not his
area of expertise and in such cases, patient should have been referred to the
appropriate doctor. However, this was not done and no consultant/specialist
with the relevant expertise was available to attend to the medical needs of
the deceased.
      13. Apropos the findings of the impugned order, the appellant herein
refutes the same and submits that they are contrary to the facts on record
which establishes negligence of the respondents in the post operative care
of the deceased.
      14. Learned senior counsel further states that the Commission has not
appreciated that the present case reflects clear example of negligence due
to absence of care. In support of this, he states that there was: i) complete
absence of senior doctor, surgeon/specialist to respond to patient’s distress
call from the time the patient was shifted to the room/ward till the time he
became unconscious and; ii) absence of investigation of pain to diagnose
the cause.
      Submissions on behalf of Respondent No.1/Hospital
     15. Dr. Lalit Bhasin, learned counsel appearing for respondent no. 1
would submit that respondent no. 1 is one of the best hospitals equipped
with latest medical equipments and the patient was looked after by Dr.
    MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                            103
    HOSPITAL & ORS. [PRASHANT KUMAR MISHRA, J.]

Ravi Bhatia of international repute, who was formerly Professor and
Head of the Neuro-Surgery and he was assisted by Dr. Brahm Prakash,
senior Neurosurgeon. It was also submitted that patient had made
excellent recovery after neurosurgery and there were no post operative
complications, therefore, he was shifted to recovery room and thereafter
to private room.
     16. Learned counsel has drawn our attention to the records of the
hospital containing pre and post operative history of the patient. Thus,
according to learned counsel, there is no negligence on the part of the
hospital or the treating doctors.
      17. Learned counsel for respondent no. 1 refutes the contentions of the
appellant and submits that in view of the findings of the Commission and
the dicta of this Court in Bombay Hospital & Medical Research Centre
v. Asha Jaiswal and Others6, the present appeal is liable to be dismissed.
     Submissions on behalf of Respondent-No.2/Dr. Bhatia
      18. Ms. Meenakshi Arora, learned senior counsel for respondent no.
2 adopts the submissions advanced on behalf of respondent no. 1 apropos
findings of the Commission in the impugned order as well as the dicta of
this Court in Bombay Hospital (supra).
      19. Additionally, respondent no. 2 submits that it was explained to
the appellant and the deceased that the patient would be examined in the
recovery room first and thereafter as per standard practice followed by the
hospital, all patients who do not show signs of complications in the Recovery
Room and have no pre-operative medical problems are shifted to their ward/
room. In case the patient develops some post-operative complications that
requires round the clock care and observation, he/she would be transferred
to the Neurology Intensive Care Unit. Respondent no. 2 also submits that
the deceased had regained full consciousness at the time when he had been
moved from the Operation Theatre to the Recovery Room. Also, less than
half the numbers of neurosurgical patients operated upon are moved from
the OT to Recovery Room and then to Neurosurgery ICU. In support of
the same, he has submitted data of respondent no.1/hospital apropos the


6   2021 SCC online SC 1149
104          SUPREME COURT REPORTS                          [2023] 15 S.C.R.


neurosurgeries conducted and number of patients transferred to Neuro ICU
thereafter.
      20. Learned senior counsel further submits that Dr. Brahm Prakash
of the Neuro-Sciences Department at the R-1/hospital met the deceased,
and no complaint was made by the patient at that time. Similarly, at about
5 p.m. he along with Dr. Tyagi met with the deceased and examined him.
The deceased at that time complained of only a mild neck pain, which is
normal after an operation on the cervical (neck) region. Thereafter, he left
the hospital for his premises and submits that since the time he left i.e.,
around 5,30 p.m. till the time he received a phone call from the appellant at
about 11.15 p.m. about the condition of the deceased, he had not received
any calls on his mobile phone or his landline, nor was any message left for
him at his residence.
      21. Learned senior counsel categorically refutes the contentions of
the appellant and submits that the impugned order suffers from no infirmity
warranting interference by this Court and is liable to be accordingly
dismissed.
      Analysis and Findings:
      22. The crucial issue to be decided is whether the respondents have
committed negligence in not providing proper post-operative medical care
to the patient and, accordingly, whether the Commission has committed
any illegality while dismissing the complaint filed by the appellant herein.
      23. Concededly, the complainant has never questioned the diagnosis
and recommended surgical treatment given to him by respondent no. 2-Dr.
Bhatia. It is not the case of the complainant that Dr. Bhatia was negligent in
performing the Neurosurgery. Thus, the entire case of the complainant was
about lack of proper post-operative medical care. On this score, the allegation
is that the patient should have been shifted to ICU instead of shifting him to
a private room. The material available on the record demonstrates that as per
the standard practice, all patients who show no signs of complications in the
recovery room and have no post or pre-operative complications are sent to
their rooms. According to the figures submitted by the respondents, during
the months of September to November 1998, out of 166 neurosurgeries,
only 68 patients were sent to the ICU from the recovery room in the hospital
    MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                             105
    HOSPITAL & ORS. [PRASHANT KUMAR MISHRA, J.]

of respondent no. 1. The rest were sent back to their wards in accordance
with standard procedure. It is the stand of respondent no. 2 that there exists
no link or interconnection between post-operative treatment/care and the
cardiac arrest suffered by the deceased. The symptoms, which emerged
after the deceased was discharged from the Operation Theatre, were not
the symptoms, which typically precede a cardiac arrest. Since, the deceased
did not have any known or identifiable heart ailments, it was impossible
for the respondents to have prior knowledge that the patient may develop
cardiac problem after few hours of the successful surgery. The symptoms,
including dizziness, sweating, and pain in the neck area, experienced by
the deceased post-surgery, could not be treated as post-surgery reactions.
The patient would have been shifted to the ICU immediately, if serious
complications would have arisen after the surgery, therefore, in the absence
of complications in the surgery or soon thereafter, the patient was not
required to be shifted to ICU and there is no negligence on this count by
either of the respondents.
     24. On the issue as to when a medical officer may be held liable for
negligence, this Court in Jacob Mathew v. State of Punjab and Another7
has observed thus:
     “A professional may be held liable for negligence on one of the two
     findings: either he was not possessed of the requisite skill which he
     professed to have possessed, or, he did not exercise, with reasonable
     competence in the given case, the skill which he did possess. The
     standard to be applied for judging, whether the person charged has
     been negligent or not, would be that of an ordinary competent person
     exercising ordinary skill in that profession. It is not possible for every
     professional to possess the highest level of expertise or skills in that
     branch which he practices. A highly skilled professional may be
     possessed of better qualities, but that cannot be made the basis or the
     yardstick for judging the performance of the professional proceeded
     against on indictment of negligence.”
     25. The next limb of allegation apropos negligence is that the deceased
was not attended to by any doctor from neurosurgery team after he was


7   (2005) 6 SCC 1
106           SUPREME COURT REPORTS                          [2023] 15 S.C.R.


shifted into the private room till 11.00 p.m. when he suffered cardiac arrest.
Material placed before this Court including the record maintained by the
hospital would reveal that the patient was examined by Dr. Brahm Prakash,
Dr. Ravi Bhatia and Dr. Tyagi after the patient was shifted to the private
room. He had complained of pain in the neck region to Dr. Ravi Bhatia and
the patient was told that it was on account of the operation. Pain in the neck
region started increasing at 06:00 p.m. for which injection was given. When
the doctor on duty contacted Dr. Tyagi, he was instructed to give tablet
Nimulid. Except for the pain in neck region, the patient did not complain
of pain in any other part of his body. The attending nurse called Dr. Tyagi
at around 08:15 p.m. to inform him that the patient is complaining about
the problem of sweating, pain and dizziness which, according to Dr. Tyagi,
were normal post operative reactions. Dr. Tyagi spoke to the complainant
and the patient on which the patient informed him that he was better. At
09:30 p.m. pain killer was given and around 11:00 p.m., the patient lost
consciousness due to severe cardiac arrest. Dr. Ravi Bhatia was informed,
and he immediately came to the hospital. Thereafter, all required steps were
taken as revealed from the hospital record. There is no evidence put forth
by the complainant to establish that heart attack suffered by the patient had
any connection with the operation in question or that it was on account of
negligent post operative care.
      26. The respondents have filed affidavit of Prof. Gulshan Kumar
Ahuja, professor of neurosurgery in AIIMS and Senior Consultant in
Neurology at Respondent No.1-Hospital. After going through the record
and CT Scan dated 04.11.1998, Dr. Ahuja opined that the record did not
show any abnormality at the operated site and the complications suffered by
the patient were totally unrelated to the surgery conducted by Respondent
No. 2. While answering the interrogatories, Dr. Ahuja stated that pain in
the neck along with sweating and nausea are not the symptoms of cardiac
respiratory arrest.
      27. It is significant to notice that the patient did not have any history of
diabetes or hypertension or any cardiac problem. Therefore, it was difficult
for treating doctors including the duty doctor or the hospital to assume that
the patient may suffer cardiac arrest and moreover, the patient had also not
complained of pain in any other part of the body except neck region. As per
   MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                               107
   HOSPITAL & ORS. [PRASHANT KUMAR MISHRA, J.]

the medical record, the patient complained of sweating only around 09:00
p.m. on which Dr. Tyagi spoke to the patient.
     28. In the matter of Bombay Hospital (supra) this Court has elaborately
considered previous judgments on the subject to hold thus:
     “16.………..It was argued that the professional competence of Doctor
     has not been doubted even by the Commission but two factors have
     been taken against the Doctor for holding him negligent; first, that
     he did not visit the patient soon after the surgery till 9/9.30 a.m. on
     the next day to verify the blood flow after the surgery, and second,
     he did not visit the patient from 29.4.1998 to 9.5.1998 when he was
     in Mumbai and from 9.5.1998 to 7.6.1998 when he went abroad for
     attending medical conferences.
     XXX
     23 ……… There is no proof that there was any negligence in
     performing the surgery on 23.4.1998 or in the process of re-exploration
     on 24.4.1998. The allegation is of failure of the Doctor to take the
     follow-up action after surgery on 23.4.1998, a delayed decision to
     amputate the leg subsequent to re-exploration on 24.4.1998, and the
     alleged undue foreign visit of the Doctor.
     29. In Martin F. D’Souza v. Mohd. Ishfaq(2009) 3 SCC 1, this court
     observed that the doctor cannot be held liable for medical negligence
     by applying the doctrine of res ipsa loquitur for the reason that a patient
     has not favourably responded to a treatment given by a doctor or a
     surgery has failed. There is a tendency to blame the doctor when a
     patient dies or suffers some mishap. This is an intolerant conduct of the
     family members to not accept the death in such cases. The increased
     cases of manhandling of medical professionals who worked day and
     night without their comfort has been very well seen in this pandemic.
     This Court held as under:
           “40. Simply because a patient has not favourably responded to
           a treatment given by a doctor or a surgery has failed, the doctor
           cannot be held straightaway liable for medical negligence by
           applying the doctrine of res ipsa loquitur. No sensible professional
           would intentionally commit an act or omission which would
108           SUPREME COURT REPORTS                        [2023] 15 S.C.R.


            result in harm or injury to the patient since the professional
            reputation of the professional would be at stake. A single failure
            may cost him dear in his lapse.
            ×××                          ×××                         ×××
            42. When a patient dies or suffers some mishap, there is a
            tendency to blame the doctor for this. Things have gone wrong
            and, therefore, somebody must be punished for it. However, it is
            well known that even the best professionals, what to say of the
            average professional, sometimes have failures. A lawyer cannot
            win every case in his professional career but surely he cannot be
            penalised for losing a case provided he appeared in it and made
            his submissions.”
      XXX
      32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[(2009) 7
      SCC 130], this Court held that the Commission ought not to presume
      that the allegations in the complaint are inviolable truth even though
      they remained unsupported by any evidence. This Court held as
      under:
            “37. We find from a reading of the order of the Commission that
            it proceeded on the basis that whatever had been alleged in the
            complaint by the respondent was in fact the inviolable truth even
            though it remained unsupported by any evidence. As already
            observed in Jacob Mathew case [(2005) 6 SCC 1] the onus to
            prove medical negligence lies largely on the claimant and that
            this onus can be discharged by leading cogent evidence. A mere
            averment in a complaint which is denied by the other side can,
            by no stretch of imagination, be said to be evidence by which
            the case of the complainant can be said to be proved. It is the
            obligation of the complainant to provide the facta probanda as
            well as the facta probantia.”
      33. In another judgment reported as Kusum Sharma v. Batra Hospital
      and Medical Research Centre[(2010) 3 SCC 480], a complaint was
      filed attributing medical negligence to a doctor who performed the
      surgery but while performing surgery, the tumour was found to be
MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                               109
HOSPITAL & ORS. [PRASHANT KUMAR MISHRA, J.]

 malignant. The patient died later on after prolonged treatment in
 different hospitals. This Court held as under:
      “47. Medical science has conferred great benefits on mankind, but
      these benefits are attended by considerable risks. Every surgical
      operation is attended by risks. We cannot take the benefits without
      taking risks. Every advancement in technique is also attended
      by risks.
      ×××                           ×××                           ×××
      72. The ratio of Bolam case [[1957] 1 WLR 582 : (1957) 2 All
      ER 118] is that it is enough for the defendant to show that the
      standard of care and the skill attained was that of the ordinary
      competent medical practitioner exercising an ordinary degree
      of professional skill. The fact that the respondent charged with
      negligence acted in accordance with the general and approved
      practice is enough to clear him of the charge. Two things are
      pertinent to be noted. Firstly, the standard of care, when assessing
      the practice as adopted, is judged in the light of knowledge
      available at the time (of the incident), and not at the date of trial.
      Secondly, when the charge of negligence arises out of failure
      to use some particular equipment, the charge would fail if the
      equipment was not generally available at that point of time on
      which it is suggested as should have been used.
      ×××                           ×××                           ×××
      78. It is a matter of common knowledge that after happening of
      some unfortunate event, there is a marked tendency to look for a
      human factor to blame for an untoward event, a tendency which
      is closely linked with the desire to punish. Things have gone
      wrong and, therefore, somebody must be found to answer for it.
      A professional deserves total protection. The Penal Code, 1860
      has taken care to ensure that people who act in good faith should
      not be punished. Sections 88, 92 and 370 of the Penal Code give
      adequate protection to the professionals and particularly medical
      professionals.”
110          SUPREME COURT REPORTS                         [2023] 15 S.C.R.


      34. Recently, this Court in a judgment reported as Dr. Harish Kumar
      Khurana v. Joginder Singh[2021 SCC OnLine SC 673] held that
      hospital and the doctors are required to exercise sufficient care in
      treating the patient in all circumstances. However, in an unfortunate
      case, death may occur. It is necessary that sufficient material or medical
      evidence should be available before the adjudicating authority to
      arrive at the conclusion that death is due to medical negligence. Every
      death of a patient cannot on the face of it be considered to be medical
      negligence. The Court held as under:
           “11. …….. Ordinarily an accident means an unintended and
           unforeseen injurious occurrence, something that does not occur
           in the usual course of events or that could not be reasonably
           anticipated. The learned counsel has also referred to the decision
           in Martin F.D’Souza v. Mohd. Ishfaq, (2009) 3 SCC 1 wherein
           it is stated that simply because the patient has not favourably
           responded to a treatment given by doctor or a surgery has
           failed, the doctor cannot be held straight away liable for medical
           negligence by applying the doctrine of Res Ipsa Loquitor. It is
           further observed therein that sometimes despite best efforts the
           treatment of a doctor fails and the same does not mean that the
           doctor or the surgeon must be held guilty of medical negligence
           unless there is some strong evidence to suggest that the doctor
           is negligent.
           ×××                          ×××                          ×××
           14.Having noted the decisions relied upon by the learned
           counsel for the parties, it is clear that in every case where the
           treatment is not successful or the patient dies during surgery, it
           cannot be automatically assumed that the medical professional
           was negligent. To indicate negligence there should be material
           available on record or else appropriate medical evidence should
           be tendered. The negligence alleged should be so glaring, in
           which event the principle of res ipsa loquitur could be made
           applicable and not based on perception. In the instant case, apart
           from the allegations made by the claimants before the NCDRC
           both in the complaint and in the affidavit filed in the proceedings,
    MRS. KALYANI RAJAN v. INDRAPRASTHA APOLLO                                111
    HOSPITAL & ORS. [PRASHANT KUMAR MISHRA, J.]

           there is no other medical evidence tendered by the complainant
           to indicate negligence on the part of the doctors who, on their
           own behalf had explained their position relating to the medical
           process in their affidavit to explain there was no negligence.
           ………………”
     36. As discussed above, the sole basis of finding the appellants
     negligent was res ipsa loquitor which would not be applicable herein
     keeping in view the treatment record produced by the Hospital and/
     or the Doctor. There was never a stage when the patient was left
     unattended. The patient was in a critical condition and if he could
     not survive even after surgery, the blame cannot be passed on to
     the Hospital and the Doctor who provided all possible treatment
     within their means and capacity. The DSA test was conducted by the
     Hospital itself on 22.4.1998. However, since it became dysfunctional
     on 24.4.1998 and considering the critical condition of the patient,
     an alternative angiography test was advised and conducted and the
     re-exploration was thus planned. It is only a matter of chance that all
     the four operation theatres of the Hospital were occupied when the
     patient was to undergo surgery. We do not find that the expectation of
     the patient to have an emergency operation theatre is reasonable as the
     hospital can provide only as many operation theatres as the patient load
     warrants. If the operation theatres were occupied at the time when the
     operation of the patient was contemplated, it cannot be said that there
     is a negligence on the part of the Hospital. A team of specialist doctors
     was available and also have attended to the patient but unfortunately
     nature had the last word and the patient breathed his last. The family
     may not have coped with the loss of their loved one, but the Hospital
     and the Doctor cannot be blamed as they provided the requisite care
     at all given times. No doctor can assure life to his patient but can only
     attempt to treat his patient to the best of his ability which was being
     done in the present case as well.”
      29. In so far as the applicability of principles of Res Ipsa Locutor, in
the fact and circumstances of the case, it is to bear in mind that the principles
get attracted where circumstances strongly suggest partaking in negligent
behaviour by the person against whom an accusation of negligence is made.
112            SUPREME COURT REPORTS                       [2023] 15 S.C.R.


For applying the principles of Res Ipsa Locutor, it is necessary that a ‘Res’
is present to establish the allegation of negligence. Strong incriminating
circumstantial or documentary evidence is required for application of the
doctrine.
      30. In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors.8
this Court has observed in paragraph 34 as follows:
       “34. Charge of professional negligence on a medical person is a serious
       one as it affects his professional status and reputation and as such
       the burden of proof would be more onerous. A doctor cannot be held
       negligent only because something has gone wrong. He also cannot be
       held liable for mischance or misadventure or for an error of judgment
       in making a choice when two options are available. The mistake in
       diagnosis is not necessarily a negligent diagnosis.”
      31. The case in hand stands on a better footing, inasmuch as there was
no mistake in diagnosis or a negligent diagnosis by Respondent no. 2. In
the absence of the patient having any history of diabetes, hypertension, or
cardiac problem, it is difficult to foresee a possible cardiac problem only
because the patient had suffered pain in the neck region.
     32. For the foregoing, this Court is of the considered view that the
appellant has failed to establish negligence on the part of Respondents in
taking post operative care and the findings in this regard recorded by the
Commission does not suffer from any illegality or perversity.
       33. The appeal sans substance and is, accordingly, dismissed.
       34. Pending application(s), if any, shall stand disposed of.


Headnotes prepared by:                                          Appeal dismissed.
Ankit Gyan




8     (2009) 9 SCC 221