VINOD JAINversusSANTOKBA DURLABHJI MEMORIAL HOSPITAL & ANR.

                          [2019] 4 S.C.R. 843                           843


                           VINOD JAIN                                   A
                                 v.
  SANTOKBA DURLABHJI MEMORIAL HOSPITAL & ANR.
                  (Civil Appeal No. 2024 of 2019)
                       FEBRUARY 25, 2019                                B
 [L. NAGESWARA RAO AND SANJAY KISHAN KAUL, JJ.]
       Consumer Protection Act, 1986: Medical negligence – Claim
for compensation – The wife of the claimant-appellant who was
suffering from various diseases was admitted on 15.10.2011 in
                                                                        C
respondent no.1-Hospital and was treated by respondent no.2-
Doctor on account of fever and chills and dislodgement of nasal
feed tube – Nasal feed tube was reinserted and various tests were
done which showed infection and her medical treatment commenced
with intravenous administration of injection – As per the medical
reports, the cannula used for treatment stopped working and as the      D
patient displayed normal vitals, respondent no.2 prescribed a
further antibiotic tablet to be orally administered through the nasal
tube – On 18.10.2011, she was discharged from hospital and was
prescribed to continue antibiotic tablet for 5 days post discharge,
which was administered to her as per the appellant – On 23.10.2011,
                                                                        E
she was again admitted in another hospital where she was put on
life support ventilation system and as her condition deteriorated
she was shifted to Fortis Hospital – On 31.10.2011, she died –
Claim petition filed by appellant against respondents before State
Commission which directed respondents to pay to the appellant
compensation of Rs.15 lakhs and cost of Rs.51000/- – National           F
Commission exonerated the respondents of any medical negligence
opining that at the highest it could be termed as a case of wrong
diagnosis and certainly not one of medical negligence – Held: The
approach adopted by the National Commission cannot be said to
be faulty, while dealing with the role of the State Commission, which
                                                                        G
granted damages on a premise that respondent No.2-Doctor could
have pursued an alternative mode of treatment – Such a course of
action, as a super-appellate medical authority, could not have been
performed by the State Commission – There was no evidence to
show any unexplained deviation from standard protocol – The
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                                843
844            SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     deceased was medically compromised by the reason of her past
      illnesses and was admitted to two other hospitals, post her discharge
      from respondent No.1-Hospital – The medical certificate issued for
      the cause of death by the Fortis Hospital cited septic shock due to
      multiple organ failure as the immediate cause of death, with her
      diabetic condition being an antecedent cause, as also the multiple
B
      malignancies, post chemotherapy and radiotherapy all
      contributing to her passing away – There was no fault in the
      reasoning of the National Commission – Negligence.
             Consumer Protection Act, 1986: Medical negligence –
      A doctor cannot be said to be negligent if he is acting in
C     accordance with a practice accepted as proper by a reasonable
      body of medical men skilled in that particular art, merely because
      there is a body of such opinion that takes a contrary view – A
      liability would only come, if (a) either the person (doctor) did not
      possess the requisite skills, which he professed to have possessed;
D     or (b) he did not exercise, with reasonable competence in a given
      case, the skill which he did possess – It is not necessary for every
      professional to possess the highest level of expertise in that branch
      in which he practices – Negligence.
            Words and Phrases: Negligence – Meaning of.
E           Dismissing the appeal, the Court
            HELD: 1.1 A doctor cannot be said to be negligent if he is
      acting in accordance with a practice accepted as proper by a
      reasonable body of medical men skilled in that particular art,
      merely because there is a body of such opinion that takes a
F     contrary view. A physician would not assure a full recovery in
      every case, and the only assurance given, by implication, is that
      he possesses the requisite skills in the branch of the profession,
      and while undertaking the performance of his task, he would
      exercise his skills with reasonable competence. [Paras 9, 10]
G     [849-B-C, F-G]
            Jacob Mathew v. State of Punjab (2005) 6 SCC 1 :
            [2005] 2 Suppl.SCR 307 – relied on.
            Bolam v. Friern Hospital Management Committee
            (1957) 1 WLR 582 : (1957) 2 All ER 118; Hucks v.
H           Cole (1968) 118 New LJ 469 – referred to
           VINOD JAIN v. SANTOKBA DURLABHJI                           845
                  MEMORIAL HOSPITAL

      1.2 Respondent No.1-Hospital promptly attended to the           A
wife of the appellant. Respondent No.2, physician, once again,
attended to her promptly, and started her on antibiotic treatment.
The nasal feed tube was re-inserted promptly. However, next
day, the cannula stopped functioning and instead of
re-cannulating the patient, oral administration of the antibiotic
                                                                      B
Polypod was found justified. It was this aspect, which according
to the appellant, amounted to medical negligence. The
explanation offered by respondent No.2-Doctor was that he found
that the drip had been disconnected, on account of all peripheral
veins being blocked due to past chemotherapies, and that the
drip had been stopped, the night before itself, at the instance of    C
the appellant. Taking into consideration the fact that the patient
was normal, a febrile, well-hydrated and displayed normal vitals,
the oral administration of the tablet was prescribed. This,
according to the NCDRC was the professional and medical
assessment by respondent No.2-Doctor, arrived at on the basis
                                                                      D
of a medical condition of the patient, and could not constitute
medical negligence. [Para 13] [852-C-F]
       1.3 The appellant has also sought to make out a case that
the blood culture report required his wife to be kept in the
hospital. This was again a judgment best arrived at by
respondent No.2-Doctor, based on her other stable conditions,         E
with only the WBC count being higher, which, as per the views of
the respondent No.2-Doctor, could be treated by administration
of the antibiotic drug orally, which was prescribed for 5 days, and
as per the appellant, was so administered. In the perception of
the doctor, the increase in lymphocytes in the blood count was        F
the result of the patient displaying an improved immune response
to the infection. It was in this context that the NCDRC opined
that at best, it could be categorised as a possible case of wrong
diagnosis. The approach adopted by the NCDRC cannot be said
to be faulty, while dealing with the role of the State Commission,
which granted damages on a premise that respondent No.2-              G
Doctor could have pursued an alternative mode of treatment.
Such a course of action, as a super-appellate medical authority,
could not have been performed by the State Commission. There
was no evidence to show any unexplained deviation from
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846            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A     standard protocol. The deceased was medically compromised by
      the reason of her past illnesses. The deceased was admitted to
      two other hospitals, post her discharge from respondent No.1-
      Hospital. The moot point was whether her admittance and
      discharge from respondent No.1-Hospital was the sole, or even
      the most likely cause of her death. The death had been caused
B
      by multiplicity of factors. There is no fault in the reasoning of the
      NCDRC. [Paras 14-16, 18] [853-A-E, G]
            Kusum Sharma & Ors. v. Batra Hospital & Medical
            Research Centre & Ors.(2010) 3 SCC 480 : [2010] 2
            SCR 685 – relied on.
C
                               Case Law Reference
            [2010] 2 SCR 685                   relied on        Para 8
            [2005] 2 Suppl. SCR 307           relied on         Para 10

D
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2024
      of 2019.
            From the Judgment and Order dated 01.08.2017 of the National
      Consumer Disputes Redressal Commission, New Delhi in First Appeal
E     No. 893 of 2016.
            Appellant-in-person.
            Abhishek Gupta, Adv. for the Respondents.
            The Judgment of the Court was delivered by
F           SANJAY KISHAN KAUL, J. 1. Leave granted.
             2. The sad demise of the wife of the appellant on 31.10.2011 has
      resulted in the legal proceedings being initiated by the appellant on a
      belief that the cause of her death was medical negligence. The State
      Consumer Disputes Redressal Commission, Rajasthan (for short ‘State
G     Commission’) found in favour of the appellant vide order dated 11.5.2016,
      but the said order was upset in appeal in the National Consumer
      Disputes Redressal Commission, New Delhi (for short ‘NCDRC’) vide
      order dated 1.8.2017. We are, thus, faced with the present appeal.

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        VINOD JAIN v. SANTOKBA DURLABHJI                                       847
     MEMORIAL HOSPITAL [SANJAY KISHAN KAUL. J.]

       3. Late Mrs. Sudha Jain was the wife of the appellant, who was          A
suffering from various diseases –oesophageal cancer (past history of
colon and breast cancer), hypertension and type 2 diabetes. The
occasion to be admitted to respondent No.1-Hospital and being treated
by respondent No.2-Doctor on 15.10.2011 was chills and fever as also
for re-insertion of nasal feed tube, stated to be dislodged due to severe
                                                                               B
dysphagia. She was attended to by respondent No.2-Doctor for the
chill and fever, and nasal feed tube was inserted on the same day by
Dr. Anurag Govil, with some allied tests prescribed to be carried out.
One of the tests was a Complete Blood Count Report, which found that
the WBC count was high, indicative of infection. She had also running
temperature of 104 degrees Fahrenheit, and her medical treatment               C
commenced with intravenous administration of injection Magnex of 1.5
mg. As per the medical reports, the cannula used for intravenous
treatment stopped functioning and respondent No.2-Doctor prescribed
a further antibiotic tablet, Polypod (Cefpodoxime) to be orally
administered through the nasal tube. The patient was discharged from
                                                                               D
respondent No.1-Hospital on 18.10.2011, at which stage also her WBC
count was high and she was prescribed to continue taking her medicines
for a period of 5 days post discharge, which apparently was
administered to her, as per the appellant.
        4. The appellant claimed that on 23.10.2011, his wife went into
coma and had to be admitted to a nearby Heart and General Hospital,            E
where she was put on life-support ventilation system. The WBC count
of the wife of the appellant had risen even further and the systolic BP
was only 40. Her health continued to deteriorate and she was required
to be shifted to the Fortis Escorts Hospital, where she finally succumbed
to her illness on 31.10.2011.                                                  F
       5. The appellant, after the initial period of mourning, is stated to
have consulted various doctors, including his son, who is stated to be a
doctor practicing in USA. It is his belief, on the basis of such discussion,
that the respondents were guilty of medical negligence in the manner in
which medical treatment was administered to his wife and her                   G
subsequent discharge from respondent No.1-Hospital. The appellant
filed a complaint with the Medical Council of Rajasthan, a statutory
body constituted under the Rajasthan Medical Act, 1952, but that
endeavour proved to be unsuccessful as no case of medical negligence

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848                SUPREME COURT REPORTS                         [2019] 4 S.C.R.


A     was found in the given facts of the case, in terms of the order passed on
      13.7.2012. The process of coming to this conclusion included the
      response of respondent No.2-Doctor to a panel of eleven doctors, which
      scrutinised the complaint and the material placed before the panel, by
      the appellant. The further appeal of the appellant, before the Medical
      Council of India was rejected as time barred on 8.3.2013. The next
B
      legal journey of the appellant began by approaching the State
      Commission, by filing a consumer complaint. The appellant sought to
      make out a case of: (a) inappropriate and ineffective medication; (b)
      failure to restart the cannula for IV medication; (c) premature discharge
      of the deceased despite her condition warranting treatment in the ICU;
C     (d) oral administration of Polypod antibiotic, despite her critical
      condition, which actually required intravenous administration of the
      medicine.
             6. On the other hand, the stand of the respondents was that when
      the patient was discharged, she was a febrile, her vitals were normal
D     and she was well-hydrated, with no infection in her chest or urinary
      tract. She was stated to be clinically stable from 15.10.2011 to 17.10.2011
      and that is why she was so discharged on 18.10.2011, with proper
      medical prescriptions for the next 5 days. However, the State
      Commission found in favour of the appellant and directed a
      compensation of Rs.15 lakh and costs of Rs.51,000/- to be paid to the
E     appellant. Aggrieved by the said order of the State Commission, the
      respondents preferred an appeal before the NCDRC, which exonerated
      the respondents of any medical negligence vide impugned order dated
      1.8.2017. It was opined that at the highest, it could be termed as a case
      of wrong diagnosis and certainly not one of medical negligence.
F           7. In order to appreciate the opinion of the NCDRC, it would be
      appropriate to lay down the legal principles which would apply in cases
      of medical negligence.
             8. ‘Negligence’ has been defined in the Halsbury’s Laws of
      England, 4thEdn., Vol. 26 pp.17-18 and extracted in Kusum Sharma
G     &Ors. v. Batra Hospital & Medical Research Centre &Ors.1 as
      under:
                “22. Negligence. – Duties owed to patient. A person who holds
                himself out as ready to give medical advice or treatment impliedly
      1
          (2010) 3 SCC 480
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           VINOD JAIN v. SANTOKBA DURLABHJI                                    849
        MEMORIAL HOSPITAL [SANJAY KISHAN KAUL. J.]

         undertakes that he is possessed of skill and knowledge for the        A
         purpose. Such a person, whether he is a registered medical
         practitioner or not, who is consulted by a patient, owes him
         certain duties, namely, a duty of care in deciding whether to
         undertake the case; a duty of care in deciding what treatment to
         give; and a duty of care in his administration of that treatment. A
                                                                               B
         breach of any of these duties will support an action for negligence
         by the patient”
        9. A fundamental aspect, which has to be kept in mind is that a
doctor cannot be said to be negligent if he is acting in accordance with a
practice accepted as proper by a reasonable body of medical men skilled
in that particular art, merely because there is a body of such opinion that    C
takes a contrary view (Bolamv. Friern Hospital Management
Committee2). In the same opinion, it was emphasised that the test of
negligence cannot be the test of the man on the top of a Clapham
omnibus. In cases of medical negligence, where a special skill or
competence is attributed to a doctor, a doctor need not possess the            D
highest expert skill, at the risk of being found negligent, and it would
suffice if he exercises the ordinary skill of an ordinary competent man
exercising that particular art. A situation, thus, cannot be countenanced,
which would be a disservice to the community at large, by making
doctors think more of their own safety than of the good of their patients.
                                                                               E
       10. This Court in another judgment in Jacob Mathew v. State of
Punjab3 dealt with the law of negligence in respect of professionals
professing some special skills. Thus, any individual approaching such a
skilled person would have a reasonable expectation of a degree of care
and caution, but there could be no assurance of the result. A physician,
thus, would not assure a full recovery in every case, and the only             F
assurance given, by implication, is that he possesses the requisite skills
in the branch of the profession, and while undertaking the performance
of his task, he would exercise his skills with reasonable competence.
Thus, a liability would only come, if (a) either the person (doctor) did not
possess the requisite skills, which he professed to have possessed; or         G
(b) he did not exercise, with reasonable competence in a given case, the
skill which he did possess. It was held not to be necessary for every
professional to possess the highest level of expertise in that branch in
2
    (1957) 1 WLR 582 :: (1957) 2 All ER 118
3
    (2005) 6 SCC 1                                                             H
850               SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A     which he practices. In the said opinion, a reference was, once again,
      made to the Halsbury’s Laws of England as under:
               “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
B              professional man of ordinary skill would have taken had he been
               acting with ordinary care.”
            11. In Hucks v. Cole4, Lord Denning speaking for the Court
      observed as under:
               “A medical practitioner was not to be held liable simply because
C              things went wrong from mischance or misadventure or through
               an error of judgment in choosing one reasonable course of
               treatment in preference of another. A medical practitioner would
               be liable only where his conduct fell below that of the standards
               of a reasonably competent practitioner in his field.”
D            12. In para 89 of the judgment in Kusum Sharma &Ors.5 the
      test had been laid down as under:
               “89. On scrutiny of the leading cases of medical negligence both
               in our country and other countries specially the United Kingdom,
               some basic principles emerge in dealing with the cases of medical
E              negligence. While deciding whether the medical professional is
               guilty of medical negligence following well known principles must
               be kept in view:
                  I. Negligence is the breach of a duty exercised by omission to
                  do something which a reasonable man, guided by those
F                 considerations which ordinarily regulate the conduct of human
                  affairs, would do, or doing something which a prudent and
                  reasonable man would not do.
                  II. Negligence is an essential ingredient of the offence. The
                  negligence to be established by the prosecution must be culpable
G                 or gross and not the negligence merely based upon an error of
                  judgment.
                  III. The medical professional is expected to bring a reasonable
                  degree of skill and knowledge and must exercise a reasonable
      4
          (1968) 118 New LJ 469
H     5
          (supra)
   VINOD JAIN v. SANTOKBA DURLABHJI                                   851
MEMORIAL HOSPITAL [SANJAY KISHAN KAUL. J.]

  degree of care. Neither the very highest nor a very low degree      A
  of care and competence judged in the light of the particular
  circumstances of each case is what the law requires.
  IV. A medical practitioner would be liable only where his conduct
  fell below that of the standard so far reasonably competent
  practitioner in his field.                                          B
  V. In the realm of diagnosis and treatment there is scope for
  genuine difference of opinion and one professional doctor is
  clearly not negligent merely because his conclusion differs from
  that of other professional doctor.
  VI. The medical professional is often called upon to adopt a        C
  procedure which involves higher element of risk, but which he
  honestly believes as providing greater chances of success for
  the patient rather than a procedure involving lesser risk but
  higher chances of failure. Just because a professional looking
  to the gravity of illness has taken higher element of risk to       D
  redeem the patient out of his/her suffering which did not yield
  the desired result may not amount to negligence.
  VII. Negligence cannot be attributed to a doctor so long as he
  performs his duties with reasonable skill and competence.
  Merely because the doctor chooses one course of action in           E
  preference to the other one available, he would not be liable if
  the course of action chosen by him was acceptable to the
  medical profession.
  VIII. It would not be conducive to the efficiency of the medical
  profession if no doctor could administer medicine without a         F
  halter round his neck.
  IX. It is our bounden duty and obligation of the civil society to
  ensure that the medical professionals are not unnecessarily
  harassed or humiliated so that they can perform their
  professional duties without fear and apprehension.
                                                                      G
  X. The medical practitioners at times also have to be saved
  from such a class of complainants who use criminal process
  as a tool for pressurizing the medical professionals/hospitals


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852            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A              particularly private hospitals or clinics for extracting uncalled
               for compensation. Such malicious proceedings deserve to be
               discarded against the medical practitioners.
               XI. The medical professionals are entitled to get protection so
               long as they perform their duties with reasonable skill and
B              competence and in the interest of the patients. The interest
               and welfare of the patients have to be paramount for the medical
               professionals.”
             13. Now turning to the application of the aforesaid principles to
      the facts at hand. It is material to note that the respondent No.1-
C     Hospital promptly attended to the wife of the appellant. Respondent
      No.2, physician, once again, attended to her promptly, and started her on
      antibiotic treatment. The nasal feed tube was re-inserted promptly.
      However, in the early hours on the next day, on 16.10.2011, the cannula
      stopped functioning and instead of re-cannulating the patient, oral
      administration of the antibiotic Polypod was found justified. It is this
D     aspect, which according to the appellant, amounts to medical negligence.
      The explanation offered by respondent No.2-Doctor was that when he
      attended the patient at 11:00 a.m. on 16.10.2011, he found that the drip
      had been disconnected, on account of all peripheral veins being blocked
      due to past chemotherapies, and that the drip had been stopped, the
E     night before itself, at the instance of the appellant. Taking into
      consideration the fact that the patient was normal, a febrile,
      well-hydrated and displayed normal vitals, the oral administration of the
      tablet was prescribed. This, according to the NCDRC was the
      professional and medical assessment by respondent No.2-Doctor,
      arrived at on the basis of a medical condition of the patient, and could
F     not constitute medical negligence.
            14. We see no reason to differ from the view expressed by the
      NCDRC, keeping in mind the test enunciated aforesaid. Respondent
      No.2-Doctor, who was expected to bring a reasonable degree of skill,
      knowledge and care, based on his assessment of the patient, prescribed
G     oral administration of the antibiotic in that scenario, especially on
      account of the past medical treatments of the wife of the appellant,
      because of which the veins for administration of IV could not be
      located. Her physical condition was found to be one where the oral
      administration of the drug was possible.
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         VINOD JAIN v. SANTOKBA DURLABHJI                                         853
      MEMORIAL HOSPITAL [SANJAY KISHAN KAUL. J.]

       15. The appellant has also sought to make out a case that the              A
blood culture report required his wife to be kept in the hospital. This was
again a judgment best arrived at by respondent No.2-Doctor, based on
her other stable conditions, with only the WBC count being higher, which,
as per the views of the respondent No.2-Doctor, could be treated by
administration of the antibiotic drug orally, which was prescribed for 5
                                                                                  B
days, and as per the appellant, was so administered. In the perception
of the doctor, the increase in lymphocytes in the blood count was the
result of the patient displaying an improved immune response to the
infection. It is in this context that the NCDRC opined that at best, it
could be categorised as a possible case of wrong diagnosis.
       16. In our opinion the approach adopted by the NCDRC cannot                C
be said to be faulty, while dealing with the role of the State Commission,
which granted damages on a premise that respondent No.2-Doctor could
have pursued an alternative mode of treatment. Such a course of
action, as a super-appellate medical authority, could not have been
performed by the State Commission. There was no evidence to show                  D
any unexplained deviation from standard protocol. It is also relevant to
note that the deceased was medically compromised by the reason of her
past illnesses. The deceased was admitted to two other hospitals, post
her discharge from respondent No.1-Hospital. The moot point was whether
her admittance and discharge from respondent No.1-Hospital was the
sole, or even the most likely cause of her death. The death had been              E
caused by a multiplicity of factors. In the end, we may also note that the
medical certificate issued for the cause of death by Fortis Escorts
Hospital cited septic shock due to multiple organ failure as the
immediate cause of death, with her diabetic condition being an
antecedent cause, as also the multiple malignancies, post chemotherapy            F
and radiotherapy all contributing to her passing away.
       17. We appreciate the pain of the appellant, but then, that by itself
cannot be a cause for awarding damages for the passing away of his
wife. We have sympathy for the appellant, but sympathy cannot trans-
late into a legal remedy.                                                         G
        18. We cannot fault the reasoning of the NCDRC. Thus, the
result is that the appeal is dismissed, leaving the parties to bear their own
costs.

                                                                                  H
Devika Gujral                                                 Appeal dismissed.