Medical Negligence -vs- wrong diagnosis.= it could be termed as a case of wrong diagnosis and certainly not one of medical negligence. = 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 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 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 translate into a legal remedy. 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.


Hon’ble Mr. Justice Sanjay Kishan Kaul 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2024 of 2019
{Arising out of SLP(C) No.32721/2017}
VINOD JAIN ….Appellant
versus
SANTOKBA DURLABHJI
MEMORIAL HOSPITAL & ANR. ….Respondents
J U D G M E N T
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
    Commission’) found in favour of the appellant vide order dated
    11.5.2016, but the said order was upset in appeal in the National
    1
    Consumer Disputes Redressal Commission, New Delhi (for short
    ‘NCDRC’) vide order dated 1.8.2017. We are, thus, faced with the
    present appeal.
  3. Late Mrs. Sudha Jain was the wife of the appellant, who was
    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
    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
    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
    2
    administered through the nasal tube. The patient was discharged from
    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, 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
  5. 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.
  6. 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 subsequent
    discharge from respondent No.1-Hospital. The appellant filed a
    complaint with the Medical Council of Rajasthan, a statutory body
    3
    constituted under the Rajasthan Medical Act, 1952, but that endeavour
    proved to be unsuccessful as no case of medical negligence 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 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; (d) oral administration of
    Polypod antibiotic, despite her critical condition, which actually required
    intravenous administration of the medicine.
  7. On the other hand, the stand of the respondents was that when the
    patient was discharged, she was afebrile, her vitals were normal 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
    4
    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 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.
  8. 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.
  9. ‘Negligence’ has been defined in the Halsbury’s Laws of England,
    4
    th Edn., Vol. 26 pp.17-18 and extracted in Kusum Sharma & 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 undertakes that he is possessed of skill and
    knowledge for the 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
    1 (2010) 3 SCC 480
    5
    deciding what treatment to give; and a duty of care in his
    administration of that treatment. A breach of any of these duties
    will support an action for negligence by the patient”
  10. 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 takes a
    contrary view (Bolam v. 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 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.
  11. This Court in another judgment in Jacob Mathew v. State of
    2 (1957) 1 WLR 582 :: (1957) 2 All ER 118
    6
    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
    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 (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
    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
    professional man of ordinary skill would have taken had he
    been acting with ordinary care.”
    3 (2005) 6 SCC 1
    7
  12. In Hucks v. Cole4
    , Lord Denning speaking for the Court observed
    as under:
    “A medical practitioner was not to be held liable simply
    because things went wrong from mischance or misadventure or
    through an error of judgment in choosing one reasonable course
    of treatment in preference of another. A medical practitioner
    would be liable only where his conduct fell below that of the
    standards of a reasonably competent practitioner in his field.”
  13. 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 negligence. While deciding whether the
    medical professional is guilty of medical negligence following
    well known principles must be kept in view:
    I. Negligence is the breach of a duty exercised by omission
    to do something which a reasonable man, guided by those
    considerations which 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 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
    4 (1968) 118 New LJ 469
    5 (supra)
    8
    a reasonable degree of care. Neither the very highest nor a
    very low degree of care and competence judged in the light
    of the particular circumstances of each case is what the law
    requires.
    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.
    V. In the realm of diagnosis and treatment there is scope
    for genuine difference of opinion and one professional
    doctor is clearly not negligent merely because his
    conclusion differs from that of other professional doctor.
    VI. The medical professional is often called upon to adopt a
    procedure which involves higher element of risk, but which
    he honestly believes as providing greater chances of success
    for the patient rather than a procedure involving lesser risk
    but higher chances of failure. Just because a professional
    looking to the gravity of illness has taken higher element of
    risk to redeem the patient out of his/her suffering which did
    not yield the desired result may not amount to negligence.
    VII. Negligence cannot be attributed to a doctor so long as
    he performs his duties with reasonable skill and competence.
    Merely because the doctor chooses one course of action in
    preference to the other one available, he would not be liable
    if the course of action chosen by him was acceptable to the
    medical profession.
    VIII. It would not be conducive to the efficiency of the
    medical profession if no doctor could administer medicine
    without a halter round his neck.
    IX. It is our bounden duty and obligation of the civil society
    to ensure that the medical professionals are not
    unnecessarily harassed or humiliated so that they can
    perform their professional duties without fear and
    9
    apprehension.
    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
    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 competence and in the interest of the patients. The
    interest and welfare of the patients have to be paramount for
    the medical professionals.”
  14. Now turning to the application of the aforesaid principles to the
    facts at hand. It is material to note that the respondent No.1-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
    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
    10
    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 the appellant. Taking into consideration
    the fact that the patient was normal, afebrile, 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 not constitute medical negligence.
  15. 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
    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.
  16. 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
    11
    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
    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.
  17. In our opinion 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-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. 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
    12
    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 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 and radiotherapy all
    contributing to her passing away.
  18. 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 translate into a
    legal remedy.
  19. 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.
    ..….….…………………….J.
    [L. Nageswara Rao]
    ………………………………J.
    [Sanjay Kishan Kaul]
    New Delhi.
    February 25, 2019.
    13