INDIAN MEDICAL COUNCIL

(Professional Conduct, Etiquette and Ethics)

Regulations, 2002

(AMENDED UPTO 8th OCTOBER 2016)

MEDICAL COUNCIL OF INDIA

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

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 Indian Medical Council

(Professional Conduct, Etiquette and Ethics) Regulations, 2002

(Published in Part III, Section 4 of the Gazette of India, dated 6th April, 2002)

MEDICAL COUNCIL OF INDIA

NOTIFICATION

New Delhi, dated 11th March, 2002

No. MCI-211(2)/2001/Registration. In exercise of the powers conferred under section

20A read with section 33(m) of the Indian Medical Council Act, 1956 (102 of 1956),
the Medical Council of India, with the previous approval of the Central Government,
hereby makes the following regulations relating to the Professional Conduct,
Etiquette and Ethics for registered medical practitioners, namely:-

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

CHAPTER I

1.CODE OF MEDICAL ETHICS

A. Declaration: Each applicant, at the time of making an application for registration

under the provisions of the Act, shall be provided a copy of the declaration and shall
submit a duly signed Declaration as provided in Appendix 1. The applicant shall also
certify that he/she had read and agreed to abide by the same.

B. Duties and responsibilities of the Physician in general:

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

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

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

1.1.3 No person other than a doctor having qualification recognised by Medical

Council of India and registered with Medical Council of India/State Medical Council
(s) is allowed to practice Modern system of Medicine or Surgery. A person obtaining
qualification in any other system of Medicine is not allowed to practice Modern
system of Medicine in any form.

1.2 Maintaining good medical practice:

1.2.1 The Principal objective of the medical profession is to render service to

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

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

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

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

1.3 Maintenance of medical records:

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

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

1.3.3 A Registered medical practitioner shall maintain a Register of Medical

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

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

1.4 Display of registration numbers:

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

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

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

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

the Gazette of India on 08.10.2016 as under.

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

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

1.7 Exposure of Unethical Conduct: A Physician should expose, without fear or favour,
incompetent or corrupt, dishonest or unethical conduct on the part of members of
the profession.
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1.8 Payment of Professional Services: The physician, engaged in the practice of
medicine shall give priority to the interests of patients. The personal financial
interests of a physician should not conflict with the medical interests of patients. A
physician should announce his fees before rendering service and not after the
operation or treatment is under way. Remuneration received for such services
should be in the form and amount specifically announced to the patient at the time
the service is rendered. It is unethical to enter into a contract of "no cure no
payment". Physician rendering service on behalf of the state shall refrain from
anticipating or accepting any consideration.

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

CHAPTER 2

2. DUTIES OF PHYSICIANS TO THEIR PATIENTS

2.1 Obligations to the Sick

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

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

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

2.3 Prognosis: The physician should neither exaggerate nor minimize the gravity of a
patient’s condition. He should ensure himself that the patient, his relatives or his
responsible friends have such knowledge of the patient’s condition as will serve the
best interests of the patient and the family.
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2.4 The Patient must not be neglected : A physician is free to choose whom he will
serve. He should, however, respond to any request for his assistance in an
emergency. Once having undertaken a case, the physician should not neglect the
patient, nor should he withdraw from the case without giving adequate notice to
the patient and his family. Provisionally or fully

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

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

CHAPTER 3

3. DUTIES OF PHYSICIAN IN CONSULTATION

3.1 Unnecessary consultations should be avoided:

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

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

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

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

physician in making themselves available for consultations.

3.4 Statement to Patient after Consultation:

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

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

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

3.6 Patients Referred to Specialists: When a patient is referred to a specialist by the

attending physician, a case summary of the patient should be given to the
specialist, who should communicate his opinion in writing to the attending physician.

3.7 Fees and other charges:

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

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

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

CHAPTER 4

4. RESPONSIBILITIES OF PHYSICIANS TO EACH OTHER

4.1 Dependence of Physicians on each other : A physician should consider it as a

pleasure and privilege to render gratuitous service to all physicians and their
immediate family dependants.

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

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

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

4.4 Appointment of Substitute: Whenever a physician requests another physician to

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

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

CHAPTER 5

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

5.1 Physicians as Citizens: Physicians, as good citizens, possessed of special training

should disseminate advice on public health issues. They should play their part in
enforcing the laws of the community and in sustaining the institutions that advance
the interests of humanity. They should particularly co-operate with the authorities in
the administration of sanitary/public health laws and regulations.

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

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

CHAPTER 6

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

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6.1 Advertising:

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

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

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

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

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

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

6.4 Rebates and Commission:

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

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

6.5 Secret Remedies: The prescribing or dispensing by a physician of secret remedial

agents of which he does not know the composition, or the manufacture or promotion
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of their use is unethical and as such prohibited. All the drugs prescribed by a
physician should always carry a proprietary formula and clear name.

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

6.7 Euthanasia: Practicing euthanasia shall constitute unethical conduct. However on

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

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

14.12.2009 in Gazette of India .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

healthcare industry a medical practitioner shall always ensure that there shall
never be any compromise either with his / her own professional autonomy and / or
with the autonomy and freedom of the medical institution.

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

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

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

h) Endorsement: A medical practitioner shall not endorse any drug or product of

the industry publically. Any study conducted on the efficacy or otherwise of such
products shall be presented to and / or through appropriate scientific bodies or
published in appropriate scientific journals in a proper way”.

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

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

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

01.02.2016 in Gazette of India, as under:-

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

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

SECTION ACTION

6.8.1 In dealing with Pharmaceutical and

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

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

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 (three) months.

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

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

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

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

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

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

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

Expenses for travel facilities more than

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

Expenses for travel facilities more than Rs.

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

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

Expenses for Hospitality more than Rs.

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

Expenses for Hospitality more than more

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

Expenses for Hospitality more than Rs.

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

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

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

Cash or monetary grants more than more

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

Cash or monetary grants more than Rs.

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

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

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

(i) Ensure that the particular research

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

(ii) Ensure that such a research

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

(iv) Ensure that the source and

amount of funding is publicly
disclosed at the beginning itself.

(v) Ensure that proper care and

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

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

(vii) Ensure that while accepting such

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

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

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

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

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

(i) Ensure that his professional

integrity and freedom are
maintained.

(ii) Ensure that patients interest are not

compromised in any way.

(iii) Ensure that such affiliations are

within the law.

(iv) Ensure that such affiliations/

employments are fully transparent
and disclosed.

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

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

16
 CHAPTER 7

7. MISCONDUCT : The following acts of commission or omission on the part of a

physician shall constitute professional misconduct rendering him/her liable for
disciplinary action

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

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

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

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

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

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

7.6 Sex Determination Tests: On no account sex determination test shall be

undertaken with the intent to terminate the life of a female foetus developing in her
mother’s womb, unless there are other absolute indications for termination of
pregnancy as specified in the Medical Termination of Pregnancy Act, 1971. Any act
of termination of pregnancy of normal female foetus amounting to female foeticide
shall be regarded as professional misconduct on the part of the physician leading to
penal erasure besides rendering him liable to criminal proceedings as per the
provisions of this Act.

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

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

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

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

7.9 Performing or enabling unqualified person to perform an abortion or any illegal

operation for which there is no medical, surgical or psychological indication.

7.10 A registered medical practitioner shall not issue certificates of efficiency in

modern medicine to unqualified or non-medical person.

(Note: The foregoing does not restrict the proper training and instruction of
bonafide students, midwives, dispensers, surgical attendants, or skilled
17
 mechanical and technical assistants and therapy assistants under the personal
supervision of physicians.)

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

18
living or to deliver public lectures, give talks on the radio/TV/internet chat for the
same purpose and send announcement of the same to lay press.

7.12 An institution run by a physician for a particular purpose such as a maternity

home, nursing home, private hospital, rehabilitation centre or any type of training
institution etc. may be advertised in the lay press, but such advertisements should
not contain anything more than the name of the institution, type of patients
admitted, type of training and other facilities offered and the fees.

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

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

In case of communicable / notifiable diseases, concerned public health

authorities should be informed immediately.

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

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

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

7.18 In the case of running of a nursing home by a physician and employing

assistants to help him / her, the ultimate responsibility rests on the physician.

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

7.20 A Physician shall not claim to be specialist unless he has a special

qualification in that branch.

7.21 No act of invitro fertilization or artificial insemination shall be undertaken

without the informed consent of the female patient and her spouse as well as the
donor. Such consent shall be obtained in writing only after the patient is provided, at
her own level of comprehension, with sufficient information about the purpose,
methods, risks, inconveniences, disappointments of the procedure and possible risks
and hazards.

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

The following Clause No. 7.23 & 7.24 are deleted in terms of Notification published
19
on 22.02.2003 in Gazette of India.

20
7.23 If a physician posted in rural area is found absent on more than two occasions
during inspection by the Head of the District Health Authority or the Chairman, Zila
Parishad, the same shall be construed as a misconduct if it is recommended to the
Medical Council of India/State Medical Council by the State Government for action
under these Regulations.

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

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

CHAPTER 8

8. PUNISHMENT AND DISCIPLINARY ACTION

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

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

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

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

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

8.6 Professional incompetence shall be judged by peer group as per guidelines

prescribed by Medical Council of India.

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

“8.7 Where either on a request or otherwise the Medical Council of India is informed that
any complaint against a delinquent physician has not been decided by a State Medical
Council within a period of six months from the date of receipt of complaint by it and
further the MCI has reason to believe that there is no justified reason for not deciding the
complaint within the said prescribed period, the Medical Council of India may-
21
(i) Impress upon the concerned State Medical council to conclude and decide the
complaint within a time bound schedule;
(ii) May decide to withdraw the said complaint pending with the concerned State Medical
Council straightaway or after the expiry of the period which had been stipulated by the

22
MCI in accordance with para(i) above, to itself and refer the same to the Ethical
Committee of the Council for its expeditious disposal in a period of not more than six
months from the receipt of the complaint in the office of the Medical Council of India.”

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

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

23
 APPENDIX - 1

A. DECLARATION

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

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

2) Even under threat, I will not use my medical knowledge contrary to

the laws of Humanity.

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

4) I will not permit considerations of religion, nationality, race, party

politics or social standing to intervene between my duty and my patient.

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

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

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

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

9) I will maintain by all means in my power, the honour and noble

traditions of medical profession.

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

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

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

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

24
 APPENDIX – 2

1. FORM OF CERTIFICATE RECOMMENDED FOR LEAVE OR EXTENSION OR

COMMUNICATION OF LEAVE AND FOR FITNESS

Signature of patient
or thumb impression

To be filled in by the applicant in the presence of the Government Medical

Attendant, or Medical Practitioner.

Identification marks:-

1.

2.

I, Dr. after careful examination of the case

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

I, Dr. after careful examination of the case certify

hereby that
on restoration of health is now fit to join service.

Place Signature of Medical attendant.

Date Registration No.

(Medical Council of India / State

Medical Council of....State)

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

25
 APPENDIX-3

FORMAT FOR MEDICAL RECORD

(see regulation 3.1)

Name of the patient :

Age :

Sex :

Address :

Occupation :

Date of 1st visit :

Clinical note (summary) of the case :

Prov. : Diagnosis :

Investigations advised with reports :

Diagnosis after investigation :

Advice :

Follow up :

Date: Observations:

Signature in full ………………………….

Name of Treating Physician

26
 APPENDIX –4

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

THE PURPOSES OF VARIOUS ACTS / ADMINISTRATIVE REQUIREMENTS

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

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

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

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

e) Under the Education Acts.

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

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

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

i) Under the Employee’s State Insurance Act.

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

k) Under the Merchant Shipping Act.

l) For procuring / issuing of passports.

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

offices or in ordinary employment.

n) In connection with Civil and Military matters.

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

p) In connection with quarantine rules.

q) For procuring driving licence.

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

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

27
 NATIONAL MEDICAL COMMISSION
NEW DELHI, DATED

National Medical Commission Registered Medical Practitioner

(Professional Conduct) Regulations, 2022

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

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

Chapter-1

Preliminary

1. Short Title and Commencement:

(A) These regulations may be called the National Medical

Commission Registered Medical Practitioner (Professional Conduct)
Regulations, 2022

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

c) " Ethics and Medical Registration Board" or EMRB means the

Board constituted under section 16;

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

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

involves a scientific understanding of disease processes and uses
rational and evidence-based treatment methods. This system of
medicine views disease as a biological abnormality in the function
or structure of organs or organ systems, with effects on organs

1
and the body as a whole. Animal experiments may be used to
understand disease processes and the efficacy

2
 of therapeutic measures. Medical research using blinded studies
and statistical analyses informs all aspects of diagnosis, testing,
treatment, and disease prevention. Modern medicine has
international uniformity in theory and practice. It has found
universal acceptance in India and is currently practiced and
taught in Government and Private hospitals and medical colleges
governed/regulated and accredited by the National Medical
Commission, Government of India.

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

by the Ethics and Medical Registration Board under section 31;

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

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

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

i) "State Medical Council" means a medical council constituted

under any law for the time being in force in any State or Union
territory for regulating the practice and registration of
practitioners of medicine in that State or Union territory.

j) "State Register" means a register maintained under any law for

the time being in force in any State or Union territory for
registration of practitioners of medicine.

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

Chapter 2

Professional Conduct of RMPs

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

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

4. Prefix, Suffix and Modern Medicine:

3
(A) Only those RMPs who are registered under NMC Act, 2019, can use

4
Medical Doctor (Med Dr.) as a prefix before their names. Every
self- employed RMP shall display the unique registration ID
assigned to her/him by EMRB in his/her prescription, certificate,
and money receipts given to patients. Employed RMP shall get a
seal made by the employer for displaying the unique registration
number below the RMP’s signatures. (L1).

(Guideline for prescription)

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

(C) A RMP shall not claim to be a clinical specialist unless he/she

has NMC recognized training and qualification in that specific
branch of modern medicine (The list of recognized post-
graduation and super-specialization degrees/diplomas will be
available on the NMC website) (L1, L2)

(D) Every RMP shall practice the system of medicine in which

he/she has trained and certified (for this purpose referred to as
modern medicine* or allopathic medicine) and shall not associate
professionally with any unqualified person to perform any
treatment, procedure, or operation.(L2)

(E) A RMP shall not employ in connection with his/her professional

practice any healthcare professional who is neither registered nor
trained under the relevant Medical Acts in force related to the
practice of modern medicine. Provided that having employed any
other assistants in the practice, the ultimate responsibility rests
on the self-employed RMP or the RMP responsible for
administration and recruitment in case of hospital practice.(L2)

5
(F) A person qualified in more than one system of medicine should
decide which system he wants to practice. Once licensed to
practice Modern medicine under NMC Act, he shall not practice
another system of medicine

6
 simultaneously. Short courses in other systems of medicine do not
qualify a practitioner to practice and prescribe in that system of
medicine.(L2)

5. Continuing Professional Development Program: A RMP should attend

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

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

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

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

or indirectly or as a part of the group of RMPs, or institutions or
organizations or hospitals or nursing homes, or corporate hospitals
established, owned, controlled, or maintained by the appropriate

7
 Government, local authority, trust, whether private or public,
corporation, co-operative society, organization or any other entity or
person. (L2)

8. Prescribing Generic Medicine: Every RMP is expected to prescribe drugs using

generic names written legibly and prescribe drugs rationally, avoiding unnecessary
medications and

8
 irrational fixed-dose combination tablets. (L1, L2) (Generic Drugs and Prescription
guidelines)

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

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

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

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

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

9
A. A RMP is permitted to make a formal announcement in any
media (print, electronic or social) within 3 months regarding
the following: (1) On starting practice (2) On change of type
of practice (3) On changing

1
 address (4) On temporary absence from duty (5) On
resumption of practice (6) On succeeding to another practice
(7) Public declaration of charges. (L2).
B. A RMP or any other person including corporate hospitals,
running a maternity home, nursing home, private hospital,
rehabilitation center, or any type of medical training
institution, etc. may place announcements in the lay press, but
these should not contain anything more than the name of the
institution, type of patients admitted, kind of training and
other facilities offered and the fees. (Guidelines on social
media conduct) (L1, L2)
C. A RMP is allowed to do public education through media without
soliciting patients for himself or the institution (L2)

12. Responsibility of RMP regarding the sale of drugs:

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

1
 available on the same day. (L2)
D. Efforts shall be made to computerize patient’s medical records for quick
retrieval and

1
 security. Within 3 years from the date of publication of these regulations, the
RMP shall fully digitize records, abiding by the provisions of the IT Act, Data
protection and privacy laws, or any other applicable laws, rules, and
regulations notified from time to time for protecting the privacy of patient
data. (L1, L2)
E. RMPs are in certain cases bound by law to give or may from time to time be
called upon to give certificates, notifications, reports, and other documents of
similar character, signed by them in their professional capacity for subsequent
use in the courts or administrative or other purposes. Such reports,
certificates, or documents should not be untrue, misleading, or improper. A
self-employed RMP shall maintain a Register giving full details of such
certificates issued by him/her. (L3)

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

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

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

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

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

17. The RMP should respect the boundaries of the doctor-patient

relationship and not exploit the patient for personal, social, and
business reasons (L2) and in particular, avoid sexual boundary
violations. (L4)

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

1
19. Informed Consent:

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

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

1
 family member must be taken. The name of the operating surgeon must be
mentioned in the medical records. In an operation that may result in sterility,
the consent of both husband and wife is required. In case of an
emergency, the doctor should try to obtain consent, but if this is not
possible, he must act in the best interest of the patient. The medical
records should describe the basis of decisions taken in an emergency
No act of in-vitro fertilization or artificial insemination shall be
undertaken without the informed written consent of the female patient
and her spouse as well as the donor. (Consent Guidelines) (L4)

(B). A RMP shall not publish photographs or case reports of patients

without their permission in any medical or another journal in a manner
by which their identity could be revealed. (L1)

(C). Clinical drug trials or other research involving patients or

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

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

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

CHAPTER 3
DUTIES OF RMPS TOWARDS THEIR PATIENT

22. Keeping appointments:

(A). An RMP shall endeavor to be prompt in attending to patients and
should keep in time with appointments or visiting/consultation hours. If

1
the RMP is delayed for a valid reason, the patient should be informed.
(L1)

1
 (B) A RMP may also advise referral when necessary to another
RMP who is specialized in the treatment of the patient’s ailment.
(L1)
(C) In case of emergency (life and limb saving procedure) an RMP
shall provide first aid and other services to the patient according to
his expertise and the available resources before referral. (L3)

23. Incapacity: A Registered Medical Practitioner having any incapacity

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

24. Confidentiality: Every communication between RMP and patients shall be

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

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

26. Patient care: A RMP is free to choose whom he will serve, except in case
of a life- threatening emergency. Having accepted a case, the RMP
should neither neglect the patient nor withdraw from the case without
giving adequate notice to the patient and his family. If a change of RMP
is needed (for example, the patient needs a procedure done by another
RMP), consent should be obtained from the patient himself or the
guardian. The RMP who attends to the patient will be fully accountable
for his actions and entitled to the appropriate fees. In case of abusive,
1
unruly, and violent patients or relatives, the RMP can document and
report the behavior and refuse to treat the patient. Such patients should
be referred for further treatment elsewhere. (L2-L4)

1
27. Referral: Only such Follow up consultation should be planned as
required by the patient. Likewise, laboratory investigations ordered for
the patient should be justified. An update/summary of the clinical
condition and reasons for referral must be documented and provided at
the referral. Specialist referral must be sought to benefit only the
patient and duly justified in medical documents (L2)

28. Signatures: All signatures in the notes, prescriptions, certificates, orders,

referral summaries etc, should carry the RMP’s Name and NMC
Registration number. Electronic generation of orders/prescriptions may
help automation of this information. (L1, L2)

29. Consultation by Telemedicine: Consultation through Telemedicine by the

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

CHAPTER-4
RESPONSIBILITIES OF RMPS TO EACH OTHER

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

indulged in. All due respect is owed to the RMP in charge of the case,
and no derogatory statement or remark be made which would impair
the confidence reposed in him by the patient. For this purpose,
professional discussions should not take place in the presence of the
patient or family or legally appointed representative. The specialist
must provide the clinical opinion only to the RMP who referred the
patient. Every discussion/opinion regarding the patient should be kept
confidential. If a referral is sought by an RMP, it should be clarified if the
specialist will take over the care of the patient or if the patient will
remain with the primary RMP. (L1, L2)

31. RMP as Locum: Whenever a RMP requests another RMP to attend to his
patients during his temporary absence from his practice, professional

1
courtesy requires the acceptance of such appointment only when the
RMP can discharge the additional

2
 responsibility along with his /her other duties. The RMP acting under
such an appointment should give the utmost consideration to the
interests and reputation of the absent RMP and all such patients should
be restored to the care of the latter upon his/her return. (L1, L2)

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

CHAPTER 5

DUTIES OF RMPs TOWARDS THE PUBLIC AND ALLIED HEALTHCARE

PROFESSIONALS

33. Public Education and Awareness:

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

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

(B). RMP should enlighten the public concerning quarantine regulations

and measures for the prevention of epidemics and communicable
diseases. At all times the RMP should notify the constituted public
health authorities of every case of notifiable disease under his care,
following the laws, rules, and regulations of the health authorities. RMP
needs to involve in public education and awareness activities without
involving in the advertisement. When an epidemic occurs, a RMP
provided with all the necessary medical protection and his own health
permitting should not abandon his duty for fear of contracting the
disease himself. (L1, L2)
34. RMP as a team leader, should recognize the importance of teamwork
2
and respect the practice of different paramedical services. (L1)

2
35. RMPs and their families must not receive any gifts, travel facilities,
hospitality, cash or monetary grants, consultancy fee or honorariums, or
access to entertainment or recreation from pharmaceutical companies,
commercial healthcare establishments, medical device companies, or
corporate hospitals. However, this does not include salaries and
benefits that RMPs may receive as employees of these organizations.
Also, RMPs should not be involved in any third-party educational activity
like CPD, seminar, workshop, symposia, conference, etc., which involves
direct or indirect sponsorships from pharmaceutical companies or the
allied health sector.RMP should be aware of the conflict of interest
situations that may arise. The nature of these relationships should be in
the public domain and should not be in contravention of any law, rule,
or regulation in force. An RMP himself or as part of any society,
organization, association, trust, etc. should be transparent regarding
the relationship with the pharmaceutical and allied health sector
industry. (L3)

36. RMPs may be required to file an affidavit regarding their financial

earnings and or benefits received in the past 5 past years from any
pharmaceutical companies or allied health sector. (L3)

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

CHAPTER 6

PROFESSIONAL MISCONDUCT

38. Professional Misconduct: Any violation of these regulations, or other

applicable Acts related to medical practice which are in force, shall
2
constitute professional misconduct. By issuing these regulations, the
EMRB, NMC, and the State Medical Councils are in no way precluded
from considering and dealing with any other form

2
 of professional misconduct by registered medical practitioners which do
not fall under any of the categories mentioned in the regulations or
guidelines or codes appended. RMPs bound by these regulations will not
engage in any activities which violate these regulations and should not
enter into any employment or other contract that engages in activities
in violation of any of these regulations. Conviction of RMP in cases of a
cognizable offence involving moral turpitude may result in the
suspension of license to practice.

39. Procedure for a complaint of professional misconduct

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

B. Where the aggrieved person is unable to make a complaint on account of

physical or mental incapacity, a complaint may be filed by —

a. a family member or relative or friend; or

b. the guardian or authority under whose care treatment was

received

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

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

40. Manner of Inquiry into the complaint

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

2
(B) On receipt of the complaint, the council shall send one of the copies
received to the respondent within 15 working days. For online complaints, the
State Medical Council/EMRB/NMC will send an e-copy/physical copy of the
complaint to the respondent.

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

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

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

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

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

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

(I).No new documents or certificates or evidence or witness will be

entertained from either of the parties once the proceedings are initiated
(meaning -after the parties have been called for a hearing) unless its
admission is cleared by the majority of the members. The complaint cannot
be withdrawn after it is admitted by the SMC or EMRB/NMC.

(J). The State Medical Council or EMRB/NMC may either of its motion or on an
application made by either of the parties have the power to change the
2
subject matter experts, if appointed, by providing a valid reason.

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

2
 1) dismiss the complaint

2) reprimand or warn the RMP

3) recommend counseling to the RMP

4) an alternative penalty can be considered

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

required)

5) may restrain the RMP from performing the clinical procedure(s) or

examination as deemed fit. Holding Suspension i.e. restraining RMP
from practice until the case is decided- only with full consensus

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

7) Award monetary penalty to aggrieved party as it deems fit as per

Section 30 of the NMC Act, 2017 can be given by EMRB only as and
when required.

8) SMC can charge monetary penalty up to 10 times of the license fee in

case it is found during misconduct complaint case that the RMP has not
taken license to practice in that state.

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

10) Punishment of Permanent removal from NMR under exceptional

circumstances by SMC must be ratified by EMRB.

42. Prohibition of review of the order: SMC or EMRB/NMC will not have the power to review

2
its order, and the order will be executed only after the expiry of the period of appeal.

2
43. Power of the SMC/EMRB. The SMC and EMRB/NMC shall have the same powers as are
vested in a civil court under the Code of Civil Procedure, 1908 while trying a complaint against
an RMP in respect of the following matters, namely: —

1) the summoning and enforcing the attendance of any defendant or

witness and examining the witness on oath.

2) requiring the discovery and production of any document or other

material object as evidence.

3) receiving evidence on affidavits.

4) the requisitioning of the report of the concerned analysis or test from

the appropriate laboratory or any other relevant source.

5) issuing of commissions for the examination of any witness, or

document; and any other matter which may be prescribed by the
Central Government.

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

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

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

45. Appeal

1) A RMP who is aggrieved by the decision of the State Medical Council

3
shall have the right to file an appeal to the Ethics and Medical
Registration Board (EMRB)

3
 within 60 days from the date of receipt of the order passed by the said
State Medical Council: Provided that the Ethics and Medical Registration
Board may if it is satisfied that the appellant was prevented by
sufficient cause from presenting the appeal within the aforesaid period
of 60 days, allow it to be presented within a further period of 60 days.

2) A RMP who is aggrieved by the decision of the Ethics and Medical

Registration Board may prefer an appeal before the National Medical
Commission within 60 days from the date of passing of an order by the
EMRB.

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

3
 Guidelines - 1
GENERIC MEDICINE AND PRESCRIPTION GUIDELINES

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

Generic medicines vs Generic names:

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

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

Branded Generic drug:

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

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

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

2. Prescribe drugs rationally and optimally

2.1. Both overprescribing and under prescribing are to be avoided keeping in

mind possible drug interactions

3. Fixed-dose combinations are to be used judiciously

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

4. Advocate for hospitals and local pharmacies to stock generic drugs.

Prescribe only those generic medicines that are available in the market
and accessible to the patient

5. Avoid prescribing “branded” generic drugs.

6. Encourage patients to purchase drugs from Jan Aushadhi kendras and

3
other generic pharmacy outlets

3
7. Educate medical students, patients, and the public regarding the
equivalence of generic medicine with their branded counterparts

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

generic medicines

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

medicine

10.Written Prescriptions should be legible and preferably in full CAPITALS to

avoid misinterpretation. As far as possible prescriptions should be typed
and printed to avoid errors.

3
 THE INDIAN CONTRACT ACT, 1872

ARRANGEMENT OF SECTIONS

SECTIONS
PREAMBLE

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

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

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

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

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

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

CHAPTER IV
OF THE PERFORMANCE OF CONTRACTS

Contracts which must be performed

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

By whom contracts must be performed

40. Person by whom promise is to be performed.

41. Effect of accepting performance from third person.

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

Performance of reciprocal promises

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

Appropriation of payments

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

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

Contracts which need not be performed

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

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

3
 CHAPTER V
OF CERTAIN RELATIONS RESEMBLING THOSE CREATED BY CONTRACT
SECTIONS
68. Claim for necessaries supplied to person incapable of contracting, or on his account.
69. Reimbursement of person paying money due by another, in payment of which he is interested.
70. Obligation of person enjoying benefit of non-gratuitous act.
71. Responsibility of finder of goods.
72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.

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

[SELLER’S LIEN.][Repealed.].
95. [Repealed.].
96. [Repealed.].
97. [Repealed.].
98. [Repealed.]
[STOPPAGE IN TRANSIT.][Repealed.].

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

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

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

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

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

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

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

CHAPTER IX
OF BAILMENT

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

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

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

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

Suits by bailees or bailors against wrong-doers

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

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

Ratification

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

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

Agent’s duty to principal

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

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

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

Effect of agency on contracts with third persons

226. Enforcement and consequences of agent’s contracts.

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

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

CHAPTER XI
OF PARTNERSHIP

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

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

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

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

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

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

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

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

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

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

1
 (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his
agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the
creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
Explanation 1.—Nothing in this section shall affect the validity, as between the donor and donee, of
any gift actually made.
Explanation 2.—An agreement to which the consent of the promisor is freely given is not void
merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into
account by the Court in determining the question whether the consent of the promisor was freely given.
Illustrations
(a) A promises, for no consideration, to give to B Rs. 1,000. This is a void agreement.
(b) A, for natural love and affection, promises to give his son, B, Rs. 1,000. A puts his promise to B into writing and registers it. This is a
contract.
(c) A finds B’s purse and gives it to him. B promises to give A Rs. 50. This is a contract.
(d) A supports B’s infant son. B promises to pay A’s expenses in so doing. This is a contract.
(e) A owes B Rs. 1,000, but the debt is barred by the Limitation Act. A signs a written promise to pay B Rs. 500 on account of the debt.
This is a contract.
(f) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A’s consent to the agreement was freely given. The agreement is a contract
notwithstanding the inadequacy of the consideration.
(g) A agrees to sell a horse worth Rs. 1,000 for Rs. 10. A denies that his consent to the agreement was freely given.
The inadequacy of the consideration is a fact which the Court should take into account in considering whether or not A’s consent was freely
given.
26. Agreement in restraint of marriage, void.—Every agreement in restraint of the marriage of any
person, other than a minor, is void.
27. Agreement in restraint of trade, void.—Every agreement by which any one is restrained from
exercising a lawful profession, trade or business of any kind, is to that extent void.
Exception 1.—Saving of agreement not to carry on business of which good-will is sold.—One
who sells the good-will of a business may agree with the buyer to refrain from carrying on a similar
business, within specified local limits, so long as the buyer, or any person deriving title to the good-will
from him, carries on a like business therein, provided that such limits appear to the Court reasonable,
regard being had to the nature of the business.
1
* * * * *.
2
28.Agreements in restraint of legal proceedings, void.— [Every agreement,—
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in
respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the
time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any
liability, under or in respect of any contract on the expiry of a specified period so as to restrict any
party from enforcing his rights,
is void to the extent.]
Exception 1.—Saving of contract to refer to arbitration dispute that may arise.—This section
shall not render illegal a contract, by which two or more persons agree that any dispute which may arise
between them in respect of any subject or class of subjects shall be referred to arbitration, and that only
the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
3
*****
Exception 2.—Saving of contract to refer questions that have already arisen. —Nor shall this
section render illegal any contract in writing, by which two or more persons agree to refer to arbitration
any question between them which has already arisen, or affect any provision of any law in force for the
time being as to references to arbitration4.

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

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

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

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

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

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

1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20

Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on

20 February, 1996

Equivalent citations: 1996 SCC (2) 634, JT 1996 (2) 624, AIR 1996 SUPREME
COURT 2377, 1996 AIR SCW 919, (1996) 2 SCR 881 (SC), (1997) 1 BOM CR
571, (2006) 4 CPJ 8, (1996) 2 MAD LJ 105, (1996) ACJ 505, (1996) 1 CURCC
358, (1996) 1 ORISSA LR 424, 1996 ALL CJ 2 681, 1996 (2) SCC 634, (1996) 1
SERVLR 29, (1996) 1 LJR 577, (1996) 2 JT 624 (SC), 1996 (1) KLT SN 34 (SC)

Author: B.N Kirpal

Bench: B.N Kirpal, S.P Bharucha

PETITIONER:
ACHUTRAO HARIBHAU KHODWA

Vs.

RESPONDENT:
STATE OF MAHARASHTRA AND ORS.

DATE OF JUDGMENT: 20/02/1996

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

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

ACT:

HEADNOTE:

JUDGMENT:

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

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 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
The appellants are aggrieved by the judgment of the Aurangabad Bench of the Bombay
High Court which has reversed a decree for Rs.36,000/- passed by the Civil
Judge, Second Division, Aurangabad, as damages on account of the death of one
Chandrikabai who was the wife of appellant no.1 and the mother of appellant nos. 2 to
5, after she had undergone a sterilization operation at the Civil Hospital, Aurangabad.

The case of the appellants before the trial court was that the deceased Chandrikabai
was admitted in the Civil Hospital, Aurangabad on 10th July, 1963, for delivery of a
child. This maternity hospital is attached to the Medical College at Aurangabad and
respondent no.2 was working in the department of Obstetrics and Gynecology as a
doctor and it is she who attended on Chandrikabai. Respondent no.3 was the Medical
Officer of the said hospital while respondent no.4 was the Dean of Medical College,
Aurangabad. Chandrikabai delivered a male child on 10th July, 1963. As she had got
herself admitted to this hospital with a view to undergo a sterilization operation after
the delivery, the said operation was performed by respondent no.2 on 13th July, 1963.
Soon thereafter Chandrikabai developed high fever and also had acute pain which
was abnormal after such a simple operation. Her condition deteriorated further and
on 15th July, 1963 appellant no.1 approached respondent no.3 and one Dr. Divan, PW-
2, who was a well-known surgeon and was attached to the hospital, but was not
directly connected with the Gynecological department. At the insistence of appellant
no.1 Dr. Divan eXamined Chandrikabai on 15th July, 1963, and seeing her condition,
he is alleged to have suggested that the sterilization operation which had been
performed should be re-opened. This suggestion was not acted upon by respondent
nos.2 and 3 and the condition of Chandrikabai became very serious. On 19th July,
1963, Dr. Divan, on being called once again, re-opened the wound of the earlier
operation in order to ascertain the true cause of the seriousness of the ailment and to
find out the cause of the worsening condition of Chandrikabai. According to the
appellants, respondent nos. 2 and 3 assisted Dr. Divan in this Operation. Dr. Divan, as
a result of the second operation, found that a mop (towel) had been left inside the
body of Chandrikabai when sterilization operation was performed on her. It was found
that there was collection of pus and the same was drained out by Dr. Divan.
Thereafter, the abdomen was closed and the second operation completed. Even,
thereafter the condition of Chandrikabai did not improve and ultimately she e Xpired
on 24th July 1963.

Alleging that Chandrikabai was working as a teacher in a government school and her
salary augmented the total income of the family, it was pleaded that the death of
Chandrikabai was caused due to the negligence of respondent no.2 who had
performed the sterilization operation on 13th July 1963, as well as the irresponsible
behavior of respondent no.3. The appellants also alleged that the hospital lacked
adequate medical aid and proper care and there was gross dereliction of duty on the
part of the officers of the Government Civil Hospital which directly resulted in the
death of Chandrikabai and, therefore, the appellants were entitled to recover damages
from the Government of Maharashtra (respondent no.1) as well as respondent nos.2 to

Indian Kanoon - 2
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
4. The appellants claimed total damages of Rs.1,75,00O/-. It may here be noticed that
the suit was commenced with the appellants' filing application for permission to sue in
form pauperis and, on the same being allowed, the same was converted to Special
Civil Suit no.5 of 1965.

Indian Kanoon - 3
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
Respondents 1 and 4 filed a common written statement contending that the appellants'
suit was false. It was denied that there was any negligence in the performance of the
sterilization operation on 13th July 1963, at the hands of respondent no. 2. In fact
the case of the respondents was that after the sterilization operation on 13th July,
1963, the condition of Chandrikabai had improved. All allegations of negligence etc.
were specifically denied. In addition thereto, respondents 2 and 3 filed separate
written statements in which they also denied any negligence on their part. Respondent
no.2 denied having left any mop in the abdomen of Chandrikabai and, in the
alternative, pleaded that even if such a mop was left inside the body, the same could
not have, either directly or remotely, caused the death. Respondent no.3 also denied
the recovery of the mop from the abdomen and generally supported the case of the
other respondents.

In view of the pleadings of the parties the Civil Judge framed as many as II issues
which are as follows:

1.Do plaintiffs prove that the defendant no.2 performed the operation
without due care, attention and caution and in the most negligent
manner?

2. Do plaintiffs prove that a mop was left in the abdomen of the

deceased Chandrikabai during the first operation, and if so, do plaintiffs
further prove that it was so left as a result of negligence, lack of care and
insufficient diligence in the operation performed by defendant no.2?

3. Do plaintiffs prove that as a result of the mop remaining inside the

body of Chandrikabai during the first operation by defendant no.2, a
severe pain was caused to her deteriorating her health and that the said
mop disturbed the internal organism of the body and resulted ultimately
in the death of Chandrikabai on 24th July 1963."

4. Do plaintiff's prove that the defendants no.2 and 3 did not take proper
care of Chandrikabai in the post operation stage as per details stated in
para 7 of the plaint. 5 Do plaintiff's prove that the defendant no.4 also
did not take any proper and necessary steps when he was instructed
about the pain received by Chandrikabai?

6. Do they prove that there was mismanagement and careless behavior in

the hospital and negligence by defendant no.3 in the removal of the same
as stated in last part of para 7 and that it aggravated the situation
resulting in the death of Chandrikabai?

7.Do the plaintiffs prove that the death of Chanbdrikabai was caused due
to failure of duty on the part of hospital authorities and their dereliction

Indian Kanoon - 4
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
of duty and hence all defendants are liable for the same?

8. Do plaintiffs prove the various details of compensation as stated in para

9 of the plaint?

9. To what amount are plaintiffs entitled on account of damages?

Indian Kanoon - 5
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
10. What order about the recovery of the court fees?

11. What decree and order?

In support of their case the appellants, apart from e Xamining appellant no.1 and his
mother-in-law, also relied upon the evidence of Dr. Divan PW-2. In addition thereto the
appellants also eXamined, on commission, Dr. Ajinkya who was a Gynecologist and
Obstetrician of Bombay. According to Dr. Divan, after the sterilization operation
Chandrikabai had suffered from post operative peritonitis. This was due to a mop
which had remained inside the peritonial cavity for a number of days and
inflammatory condition had reached a stage from which recovery was very difficult.
After the removal of the mop Dr. Divan said that he saw the condition of the intestine
which continued to remain paralysed. The treatment of peritonitis was started from
15th July, 1963 and in his opinion the death of the patient was due to the
complications following the leaving of the mop inside the abdomen. The other eXpert
witness Dr. Ajinkya also came to the same conclusion, though his statement was
recorded without his having the benefit of seeing the case papers. On behalf of the
respondents, apart from themselves, two eXperts, namely, Dr. Marwa, Professor of
Surgery, Medical College, Aurangabad and Dr.B.V. Purandare, a leading Obstetrician
and Gynecologist of Bombay were eXamined. The trial court did not rely upon the
evidence of the eXperts eXamined by the respondents because it came to the
conclusion that the original documents and case papers had been filed late, some
relevant entries had also been tampered with and it was only the typed papers, which
were copies of the tampered documents, which were supplied to the respondents'
eXpert witnesses for their opinion. The trial court, while accepting and relying on the
evidence of Dr. Divan, also observed that the effort of respondents 2 and 3 was to
throw the blame on Dr. Divan. According to them, they had prohibited Dr. Divan from
performing the second operation and the said respondents even denied that a mop
was recovered from the abdomen of Chandrikabai. The trial court decided all the
issues, eXcept issues 5 and 6, in favour of the appellants and passed a decree for
Rs.36,000/- against respondent nos. 1 to 3, but the suit against respondent no.4 was
dismissed.

The State as well as the respondents 2 and 3 filed appeals to the High Court. In a
marathon judgment of over 300 pages the High Court discussed all the evidence and
firstly came to the conclusion that, in law, the Government could not be held liable for
tortious act committed in a hospital maintained by it. Thereafter, it held that though
there was no justification for the delay in the authorities' concerned in supplying the
case papers to the appellants, no prejudice had been caused. The High Court did
observe that there were some erasure marks and rubbing off of the entries in the
original case papers, but held that it was not possible to infer therefrom that the
registers had been tampered with and that there was no material before the trial court
to hold that the case papers were tampered with by respondents 2 to 4. The High
Court also noticed that the opinion of the e X perts was conflicting. Whereas

Indian Kanoon - 6
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
according to Dr. Divan and Dr. Ajinkya, Chandrikabai had peritonitis even before
the second operation on 19th July, 1963, and she died because of the same, according
to Dr. Purandare, Chandrikabai was only suffering from acute gastic disorder till 19th
July, 1963, and it was necessary for the doctors to have waited after removal of the
pus on that day and the second operation was possibly not necessary. Dr. Purandare
deposed that in the absence of a post mortem e Xamination the eXact and correct cause
of death could not be determined though, by looking at the case papers, the
cause of death was peritonitis with

Indian Kanoon - 7
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
septicaemia following the second operation. The opinion of Dr. Marwa was also to the
same effect. The High Court while accepting the evidence of Dr. Purandare came to
the conclusion that it was difficult to hold that anything that was done during the
sterilization operation, or thereafter, had definitely caused the death of
Chandrikabai. While, holding that respondent no.2 had definitely been negligent in
leaving a mop inside the abdomen of Chandrikabai, it held that the appellants had
failed to prove that the negligence of leaving the mop inside the abdomen had caused
the death of Chandrikabai. It, therefore, concluded that none of the respondents
could be held liable for negligence. It, accordingly, allowed the appeals and dismissed
the suit.

Two questions which arise for consideration in this appeal are whether the State of
Maharashtra can be held liable for any negligence of its employees and secondly
whether the respondents or any one of them acted negligently in the discharge of their
duties.

Decisions of this Court now leave no scope for arguing that the State cannot be held to
be variously liable if it is found that the death of Chandrikabi was caused due to
negligence on the part of its employees.

In State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR 1962 SC 933) the
question arose with regard to the various liability of the State of Rajasthan. In that
case a vehicle owned by the State of Rajasthan, which was being driven by its driver,
met with an accident which resulted in the death of one person. The death was caused
due to the negligence of the driver. The two contentions of the State of Rajasthan were
that under Article 300 of the Constitution, the State would not be liable, as the
corresponding Indian State would not have been liable if the case had arisen before
the Constitution came into force. Secondly, it was contended that the jeep which was
driven rashly and negligently was being maintained by the State in e Xercise of its
sovereign powers and was not a part of any commercial activity of the State. Rejecting
the said contention this Court held that "the State should be as much liable for tort
in respect of a tortious act committed by its servant within the scope of his
employment and functioning as such, as any other employer. "This question again
came up for consideration in Kasturi Lal Ralia Ram Jain Vs. The State of Uttar
Pradesh. (AIR 1965 SC 1039) and which has been referred to by the High Court in the
present case while coming to the conclusion that the State of Maharashtra cannot be
held to be variously liable. In Kasturi Lal's case gold had been seized and the same had
been kept in a malkhana. The appellant demanded the return of this gold but the
same was not returned. It appeared that the same had been misappropriated by
the person in-charge of the malkhana. The respondents therein claimed that it was not
a case of negligence by the Police officers and even if negligence was proved the State
could not be held to be liable for the said loss. While holding that there was negligence
on the part of the police officers, this Court denied relief by observing that the powers
which were eXercised by the police officers could be properly characterized as

Indian Kanoon - 8
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
sovereign powers and, therefore, the claim could not be sustained. This Court
distinguished the decision in Vidhyawati's case by observing:

"In dealing with such cases, it must be borne in mind that when the State
pleads immunity against claims for damages resulting from injury
caused by negligent acts of its servants, the area or employment
referable to sovereign powers must be strictly determined. Before such
a plea is upheld, the Court must always find that the

Indian Kanoon - 9
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
impugned act was committed in the course of an undertaking or
employment which is referable to the e X ercise of sovereign power, or
to the e X ercise of delegated sovereign power. "

EXplaining the distinction between the two types of cases, it was also observed as
follows;

"It is not difficult to realize the significance and importance of making

such a distinction particularly at the present time when, in pursuit of
their welfare ideal, the Government of the States as well as the
Government of India naturally and legitimately enter into many
commercial and other undertakings and activities which have no relation
with the traditional concept of governmental activities in which the
eXercise of sovereign power is involved. It is necessary to limit the
area of these affairs of the State in relation to the e Xercise of sovereign
powers, so that if acts are committed by Government employees in
relation to other activities which may be conveniently described as
nongovernmental or non-sovereign, citizens who have a cause of action
for damages should not be precluded from making their claim against the
State, That is the basis on which the area of the State immunity against
such claims must be limited; and this is e Xactly what has been done by
this Court in its decision in the case of State of Rajasthan."

Two recent decisions where the State has been held to be variously liable on account
of the negligent acts of its employees are those of N. Nagendra Rao and Company Vs.
State of Andhra Pradesh (1994
(6) SCC 205) and State of Maharashtra & Ors. Vs. Kanchanmala Vijay Singh Shrike &
Ors. ( JT 1995 SC 155). In Nagendra Rao's case some goods had been conficated
pursuant to an order passed under Section 6 A of the Essential Commodities Act,
1955. The said order was annulled but due to the negligence of the officers concerned
goods were not found to be of the same quality and quantity which were there at the
time of its confiscation. The owners of the goods refused to take delivery and filed a
suit claiming value of the goods by way of compensation. The High Court of Andhra
Pradesh held that the State was not variously liable for negligence of its officers in
charge of their statutory duties. Negativing this, this Court while allowing the appeal
observed at page 235 as follows:

"In Welfare State, functions of the State are not only defence of the
country or administration of justice or maintaining law and order but
eXtends to regulating and controlling the activities of people in almost
every sphere, educational, commercial, social, economic, political and
even marital. The demarcating line between sovereign and non
sovereign powers for which no rational basis survives has largely
disappeared. Therefore, barring functions such as administration of

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
justice, maintenance of law and order and repression of crime etc. which
are among the primary and inalienable functions of a constitutional
government, the State cannot claim any immunity.

The determination of various liability of the State being linked with

negligence of its officer, if they can be sued personally for which there is
no death of authority and the law of misfeasance in discharge of public
duty having marched ahead, there is no

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
rational for the proposition that even if the officer is liable the State
cannot be sued. The liability of the officer personally was not doubted
even in Viscount Canterbury. But the Crown was held immune on
doctrine of sovereign immunity. Since the doctrine has become outdated
and sovereignty now vests in the people, the State cannot claim any
immunity and if a suit is maintainable against the officer personally,
than there is no reason to hold that it would not be maintainable against
the State." A similar view has been taken in Kanchanmala Vijaysingh's
case (supra) where, dealing with a claim for compensation arising as a
result of an accident with a jeep belonging to the State, it was observed
as follows:

"Traditionally, before court directed payment of tort compensation, the

claimant had to establish the fault of the person causing injury or
damage. But of late, it shall appear from different judicial
pronouncements that the fault is being read as because of someone's
negligence or carelessness. Same is the approach and attitude of the
courts while judging the various liability of the employer for negligence of
the employee. Negligence is the omission to do something which a
reasonable man is eXpected to do or a prudent man is e Xpected not to do.
Whether in the facts and circumstances of a particular case, the person
causing injury to the other was negligence or not has to be eXamined
on the materials produced before the Court. It is the rule that an
employer, though guilty of no fault himself, is liable for the damage done
by the fault or negligence of his servant acting in the course of his
employment. In some case, it can be found that an employee was doing an
authorised act in an unauthorised but not a prohibited way. The employer
shall be liable for such act, because such employee was acting within the
scope of his employment and in so acting done something negligent or
wrongful. A master is liable even for acts which he has not authorised
provided they are so connected with acts which he has been so
authorised. On the other hand, if the act of the servant is not even
remotely connected within the scope of employment and is an
independent act, the master shall not be responsible because the
servant is not acting in the course of his employment but has gone
outside."

The High Court has observed that the government cannot be held liable in tort for
tortious acts committed in a hospital maintained by it because it considered that
maintaining and running a hospital was an eXercise of the State's sovereign power. We
do not think that this conclusion is correct. Running a hospital is a welfare activity
undertaken by the government but it is not an eXclusive function or activity of the
government so as to be classified as one which could be regarded as being in eXercise
of its sovereign power. In Kasturi Lal's case itself, in the passage which has been

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
quoted hereinabove, this Court noticed that in pursuit of the welfare ideal the
government may enter into many commercial and other activities which have no
relation to the traditional concept of governmental activity in eXercise of sovereign
power. Just as running of passenger buses for the benefit of general public is not a
sovereign function, similarly the running of a hospital, where the members of the
general public can come for treatment, cannot also be regarded as being an activity
having a sovereign character. This being so, the State would be variously liable for the
damages which may become payable on account of negligence of its doctors or other
employees.

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
Before considering whether the respondents in the present case could be held to be
negligent, it will be useful to see as to what can be regarded as negligence on the part
of a doctor. The test with regard to the negligence of a doctor was laid down in Bolam
Vs. Friern Hospital Management Committee ( [1957] 1 WLR 582 ). It was to the effect
that a doctor is not guilty of negligence if he acted in accordance with a practice
accepted as proper by a responsible body of medicalmen skilled in that particular art.
This principle in Bolam's case has been accepted by the House of Lords in England as
applicable to diagnosis and treatment. (See Sidaway Vs. Board of Governors of
Bethlem Roval Hospital ( [1985] A.C. 871 at 881 ) Dealing with the question of
negligence, the High Court of Australia in Rogers Vs. Whitaker ( [1993] 109 A.L.R. has
held that the question is not whether the doctor's conduct accords with the practice of
a medical profession or some part of it, but whether it conforms to the standard of
reasonable care demanded by the law. That is a question for the court to decide and
the duty of deciding it cannot be delegated to any profession or group in the
community. It would, therefore, appear that the Australian High Court has taken a
somewhat different view than the principle enunciated in Bolam's case. This Court has
had an occasion to go into this question in the case of Dr.Laxman Balkrishan Joshi Vs.
Dr. Trimbak Bapu Godbole and Anr. (AIR 1969 SC 128
). In that case the High Court had held that the death of the son of the claimant was
due to the shock resulting from reduction of the patient's fracture attempted by the
doctor without taking the elementary caution of giving anaesthetic. In this conte Xt,
with reference to the duties of the doctors to the patient this court, in appeal,
observed as follows:

"The duties which a doctor owes to his patient are clear. A person who
holds himself out ready to give medical advice and treatment impliedly
undertakes that he is possessed of skill and knowledge for the purpose.
Such a person when consulted by a patient owes him certain duties, viz.,
a duty of care in deciding whether to undertake the case, a duty of care in
deciding whether treatment to give or a duty of care in the administration
of that treatment. A breach of any of those duties gives a right of action
for negligence to the patient. The practitioner must bring to his task a
reasonable degree of skill and knowledge and must e Xercise a reasonable
degree of care. Neither the very highest nor a very low degree of care
and competence judged in the light of the particular circumstances of
each case is what the law requires. The above principle was again applied
by this court in the case of A.S. Mittal and Ors. vs. State of U.P. and Ors.
(AIR 1989 SC 1570). In that case irreparable damage had been done to
the eyes of some of the patients who were operated upon at an eye camp.
Though this Court refrained from deciding, in that particular case,
whether the doctors were negligent, it observed "A mistake by a medical
practitioner which no reasonably competent and a careful practitioner
would have committed is a negligent one." The Court also took note that
the law recognizes the dangers which are inherent in surgical operations

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
and that mistakes will occur, on occasions, despite the e Xercise of
reasonable skill and care. The Court further quoted Street on Torts
(1983) (7th Edn.) wherein it was stated that the doctrine of res ipso
loquitur was attracted: ". Where an uneXplained accident occurs
from a thing under the control of the
defendant, and medical or other e Xpert evidence shows that such
accidents would not happen if proper care were used, there is at least
evidence of negligence for a jury." The latest case to which reference can
be made is that of Indian Medical Association

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
Vs. V.P. Shantha and Ors. (1995) 6 SCC

651). The question which arose in this case was whether the
Consumer Protection Act, 1986, applied to medical practitioners,
hospitals and nursing homes. It was held in this case that medical
practitioners were not immune from a claim for damages on the ground
of negligence. The Court also approved a passage from Jackson & Powell
on Professional Negligence and held that "the approach of the Courts
is to require that professional men should possess a certain minimum
degree of competence and that they should eXercise reasonable care in
the discharge of their duties.

In general, a professional man owes to his client a duty in tort as well as in contract to
eXercise reasonable care in giving advice or performing services."

The skill of medical practitioners differs from doctor to doctor. The very nature of the
profession is such that there may be more than one course of treatment which may be
advisable for treating a patient. Courts would indeed be slow in attributing negligence
on the part of a doctor if he has performed his duties to the best of his ability and with
due care and caution. Medical opinion may differ with regard to the course of action to
be taken by a doctor treating a patient, but as long as a doctor acts in a manner which
is acceptable to the medical profession, and the Court finds that he has attended on
the patient with due care skill and diligence and if the patient still does not survive or
suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of
negligence.

In cases where the doctors act carelessly and in a manner which is not e Xpected of a
medical practitioner, then in such a case an action in torts would be maintainable. As
held in Laxman's case (supra) by this Court a medical practitioner has various duties
towards his patient and he must act with a reasonable degree of skill and knowledge
and must eXercise a reasonable degree of care. This is the least which a patient
eXpects from a doctor.

In the present case the facts speak for themselves. Negligence is writ large. The
facts as found by both the courts, in a nutshell, are that Chandrikabai was admitted to
the government hospital where she delivered a child on 10th July, 1963. She had a
sterilization operation on 13th July, 1963. This operation is not known to be serious in
nature and in fact was performed under local anesthesia. Complications arose
thereafter which resulted in a second operation being performed on her on 19th July,
1963. She did not survive for long and died on 24th July, 1963. Both Dr. Divan and Dr.
Purandare have stated that the cause of death was peritonitis. In a case like this the
doctrine of res ipso loquitur clearly applies. Chandrikabai had had a minor operation
on 13th July, 1963 and due to the negligence of respondent no.2 a mop (towel) was left
inside her peritonial cavity. It is true that in a number of cases when foreign bodies

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
are left inside the body of a human being either deliberately, as in the case of
orthopaedic operations, or accidentally no harm may befall the patient, but it also
happens that complications can arise when the doctor acts without due care and
caution and leaves a foreign body inside the patient after performing an operation and
it suppurates. The formation of pus leaves no doubt that the mop left in the abdomen
caused it, and it was the pus formation that caused all the subsequent difficulties.
There is no escape from the conclusion that the negligence in leaving the mop in
Chandrikabai's abdomen during the first operation led, ultimately, to her death.

Indian Kanoon - 1
 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors on 20
But for the fact that a mop was left inside the body, the second operation on 19th July,
1963 would not have taken place. It is the leaving of that mop inside the abdomen of
Chandrikabai which led to the development of peritonitis leading to her death. She
was admitted to the hospital, on 10th July, 1963 for a simple case of delivery followed
by a sterilization operation. But even after a normal delivery she did not come out of
the hospital alive. Under these circumstances, and in the absence of any valid
eXplanation by the respondents which would satisfy the court that there was no
negligence on their part, we have no hesitation in holding that Chandrikabai died due
to negligence of respondent nos. 2 and 3.

Even if it be assumed that it is the second operation performed by Dr. Divan which led
to the peritonitis, as has been deposed to by Dr. Purandare, the fact still remains that
but for the leaving of the mop inside the peritonial cavity, it would not have been
necessary to have the second operation. Assuming even that the second operation was
done negligently or that there was lack of adequate care after the operation which led
to peritonitis, the fact remains that Dr. Divan was an employee of respondent no.1 and
the State must be held to be variously liable for the negligent acts of its employees
working in the said hospital. The claim of the appellants cannot be defeated merely
because it may not have been conclusively proved as to which of the doctors
employed by the State in the hospital or other staff acted negligently which caused the
death of Chandrikabai. Once death by negligence in the hospital is established, as in
the case here, the State would be liable to pay the damages. In our opinion, therefore,
the High Court clearly fell in error in reversing the judgment of the trial court and in
dismissing the appellants' suit.

For the aforesaid reasons, this appeal is allowed, the judgment of the High Court of
Bombay under appeal is set aside and the judgment and decree of the trial court is
restored. The appellants will also be entitled to costs throughout.

Indian Kanoon - 1
 REPORTABLE

IN THE SUPREME COURT OF

INDIA CIVIL APPELLATE

JURISDICTION

CIVIL APPEAL NO. 1658 OF 2010

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

RESEARCH CENTRE

VERSUS

ASHA JAISWAL & ORS

....................................................................................................................
RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 2322 OF 2010

JU D G M E N T

HEMANT GUPTA, J.

1. The present appeals are directed against an order passed

by the National Consumer Disputes Redressal Commission 1

on 06.01.2010 against the appellants i.e., Bombay Hospital

& Medical Research Centre2 and Dr. C. Anand Somaya3,

directing to pay a sum of Rs. 14,18,491/- along with

Signature Not Verified

interest @ 9% p.a. from the date of filing of the complaint

Digitally signed by Jayant Kumar Arora Date: 2021.11.30
16:46:30 IST
Reason:
1
 till the date of payment.

1 For short, the ‘Commission’

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

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

heirs4 of the deceased - patient Dinesh Jaiswal5, alleging

medical negligence on the part of the Hospital and the

Doctor in treating the patient. The patient was admitted to

the Hospital on 22.04.1998 and breathed his last on

12.06.1998. The Hospital charged a sum of Rs. 4,08,800/- for

the treatment of the patient during the period of his

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

is part of the amount of compensation awarded against the

appellants herein.

3. The patient was taking treatment since 1990 for having

difficulties in walking due to the pain and discomfort in legs.

For his complaint of inability to walk, a Colour Doppler Test

was conducted on 13.04.1998 at Khemuka X-Ray &

Ultrasound Clinic, Nagpur which detected the following:

“Aneurismal dilatation of the lower abdominal aorta

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

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

by the

3
4 For short, the ‘Complainant’
5 For short, the ‘patient’

4
 patient on 15.04.1998 and Dr. Deshpande diagnosed the
“A case of Abd Aortic
Aneurysum Involvement on
left side
with Left PVB
(Embolism) H/O
Trauma 1983,
Pain Left LL 1990 S/O Embolism
Vascular Duplex Seen S/O Large Abd. A. Aneurysum

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

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

appellant- Doctor who is a Vascular Surgeon. The patient

consulted the appellant-Doctor on 21.4.1998. The Doctor

ordered the admission of the patient as an urgent case of

aorta aneurysum. On 22.4.1998, the Doctor advised

urgent DSA/CAT Scan [Digital Sub-Traction Angiography

and Computerized Axial Tomography] and surgery after

noticing the following physical conditions:

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

6. The Doctor after examining the patient recorded that there

were ischemic changes in both lower limbs and also noted an

5
 patient on 15.04.1998 and Dr. Deshpande diagnosed the
impending gangrene. Subsequent to the pre-operative

preparations, surgery was conducted on 23.04.1998 by a

team of surgeons including Dr.

6
 Partha and Dr. Bindra, led by the appellant-Doctor. The
notes read as thus:

“On inspection there was a huge aneurysum on the

latral aspect on left side arising infra renal.

It was densely adherent to the surrounding structure.

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

After achieving proper exposure/slinging around all the

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

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

After achieving proper haemostasis and checking the

pulsation.

Intra-operatively, the abdomen closed using drainage tubes.

The patient was later shifted to recovery room on

ventilator with stable vital signs.”

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

7
 Partha and Dr. Bindra, led by the appellant-Doctor. The
4 am, that is the night after surgery, the nurse who was

attending the

8
 patient observed that the pulsation of the patient had

become feeble and body temperature was low and the

lower limbs had gone cold. The relatives were informed at

about 7 a.m. that the patient was unconscious, legs were

cold with no pulsation. The complainant further alleged

that the nurse had informed the Doctor at 4 am but he

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

the Doctor was directed to get second DSA test but DSA

machine was out of order. Hence, the Doctor advised

angiography but the patient was made to wait for both DSA

test as well as for angiography. One Dr. B.K. Goyal

examined the patient and reported that the patient had

probably developed block of abdominal aorta.

8. The angiography conducted at 12.30 pm on 24.4.1998

showed a block (clot) at the graft due to which the blood

supply to the lower limbs had totally stopped. The

complainant contended that the earlier surgery was not

performed correctly and there was negligence in conducting

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

surgery done at about 3:30 pm but since all the four operation

theatres were occupied, he could only be taken to the

operation theatre for re-grafting at 5.30 p.m. As there was no

pulsation in the graft and there was clot in the graft extending

9
into both limbs of the graft, a fresh graft was sutured and

the patient was shifted to recovery room and put on

ventilator.

1
9. It was contended by the Hospital that the patient was in the care

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

Dr. A.L. Kripalani, Dr. Partha, Dr. H.S. Bindra and many others

throughout his course of admission and no stone was left

unturned to ascertain the complications and treat the same.

Various specialist doctors were treating the patient and

medicines/treatment was timely regulated and changed as

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

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

despite the best efforts of the qualified doctors, the patient did

not respond to the treatment and passed away on 12.06.1998.

10. The complainant in the complaint enumerated the facts

suggesting negligence and deficiency of service on the part of

the appellants. The averments made by the complainant and

the corresponding reply by the Doctor is extracted

hereinunder:

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

above
the patient is kept under close and with reference to para 34 of
the
observation to find out whether complaint under reply, I deny
the
blood is flowing normally. In case allegations made therein are
false.
there is stoppage or lack of flow With further reference to the
said
immediate action is taken to para it is substantially correct
to

1
control the situation because lack state that in all cases of
grafting
of blood is certain to rupture and patient is kept under closer
deaden the muscles. The observations to find out
tissues whether
cannot survive without blood flow. blood is flowing normally. In
case
But in this case after the patient there is stoppage or lack of
flow
was taken to recovery room he immediate action is taken to
was control

1
not examined by any doctor. the situation because lack of
The attending nurse observed blood is certain to rupture and
at 4.30 deaden the muscles. I say and
a.m. on 24.4.98 that lower limbs submit that even while treating
had become cold and did the said deceased, utmost care
inform the doctors. The doctors was taken by the opp. party in
were called in writing at 8 a.m. post operative period. In this
but Dr. Somaya came at 9.30 connection I say and submit
a.m. This time gap was enough that patient was kept in Cardio
to rupture the muscles. The Vascular Incentive Care Unit
process is irreversible. It cannot CVICU which is considered to be
be corrected. Timely medical finest in India. The patient was
care could have saved the life of continuously monitored by
the complainant. efficient and trained nursing
staff and was also monitored
for 24 hours by resident doctor.
With further reference to the
said para I deny that at about
4.30
a.m. on 24-4-1998 the attending
nurse observed that lower limbs
had become cold as alleged or at
all. I deny that, doctors were
summoned and that I came to
the said unit, only at 9.30 a.m.
as alleged or at all. I deny that,
because of the so called delay
on my part further
complications took place in the
case of the said deceased as
alleged or at all. I say and
submit that immediately after I
received message from the
resident doctor attached to the
opp. party no.1 attended the
said patient at about
9.00 a.m. and not at 9.30 a.m.
as sought to be suggested by
the complainant.
35. That in spite of the critical 17. With reference to paras 35
condition of the complainant on and
24.4.98, he was made to stand 36 of the complaint under reply,
in queue for DSA test for more I deny that in spite of critical
than 3 hours. This delay further condition of the complainant on
24.4.1998 he was deliberately
1
worsened the condition of the made to stand in queue for DSA
complaint it appears that test for more than 3 hours. I
Bombay Hospital had no deny that the said delay was
medical ethics. deliberate and due to the said
delay the condition of

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

1
 this the said allegations are not
based or supported on the basis
of the independent expert’s
opinion.
37. That on the same day at 18. With reference to para 37 of
12.30 the
p.m. (8 hours after it was complaint under reply, it is
discovered

1
that blood supply has substantially correct to state that
stopped) angiography was on the same day at about 12.30
performed. But again the p.m. angiography was
report was given at 3.30 performed. However, I deny that
p.m. a further delay of 3 hours report was made available only
which were crucial to the life at 3.30 p.m. as alleged or at all. I
of the complainant. deny that further delay of 3
hours which were crucial to the
life of the deceased, contributed
towards further complications as
alleged or at all.
38. That on receipt of the 19. With reference to paras 38
report the surgeon decided to and 39 of the complaint under
reopen the abdomen to make reply, it is substantially correct
correctness. Again the operation to state that the surgeon
could not be done immediately decided to reopen abdomen to
because the hospital did not make correctness after perusing
have a vacant operation theatre. the angiography report.
The hospital did not have However, I deny that operation
emergency operation theatre. was postponed or delayed as
The hospital did not even try to theatre was not available. I say
operate the patient in an outside and submit that the said delay
operation theatre. This caused was not at all deliberate. During
another delay of 3 hours. the relevant time, the operation
theatres of opp. party no.1 were
39. The sequence of event
occupied as other patients were
shows that for various causes
under treatment.
wholly attributable to the
20. With further reference to the
Bombay Hospital that treatment
said para the allegations made
was delayed by 12 hours while
therein are not only baseless
the muscles cannot survive lack
but the same are made with
of blood supply for more than
ulterior motive and malafide
two hours.
intention. I say and submit that
to my personal knowledge and
the opp. party no.1 is one of the
most well equipped hospital in
Asia. I say and submit that there
are 4 operation theatres
available for CU surgery only
which is a rear phenomenon in
city of Mumbai and therefore
the allegations made by the
complainants that the hospital
did not have emergency

1
 operation is totally baseless.
40. There was a finding of 21. With reference to paras 40
and

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

1
proper notice thereby railing
upon the opp. parties to explain
the so called negligence also
supports my case that present
complaint is filed with
ulterior

2
 motive with an intention to
knock out hand sum ransom
from the opp. parties.

42. That leaving the patient 22. With reference to para 42 of

fighting for his life in the care of the complaint under reply, I deny
inexperienced junior doctors viz. that during the relevant time I
Dr. Partha and Bindra, Dr. went abroad for vacation
Somaya went abroad for thereby leaving the patient
vacationing. He was not available fighting for his life in the care of
even for advice for more than 30 inexperienced junior doctors viz.
days. Dr. Partha and Dr. Bindra as
alleged or at all. I say and submit
that aforementioned allegations
are not only false but the said
allegations are made with an
intention to cause prejudice in
the mind of the Hon’ble
Members of National
Commission. In this connection,
I say and submit that during the
relevant time i.e. between 9th
May 1998 to 7.6.1998, I had to
China, England and USA to
attend medical conferences and
both the said conferences were
fixed well in advance. Similarly
the allegations of the
complainants that Dr. Partha and
Dr. Bindra are inexperienced
junior doctors is also baseless for
the simple reasons that both the
aforementioned doctors are
postgraduate and experienced
in their respective field and both
are having adequate experience
in the aforementioned field.
Besides this the said deceased
was being treated by senior
specialist at the opp. party no.1
hospital and in case of any
emergency opp. party no.1 could
have arranged senior experts
and therefore merely because I
was away from India that too in
2
connection with my professional
activities, the complainants
should
not be permitted to make
capital

2
 out of it.
43. That Dr. Kripalani a 23. With reference to para 43 of
neurologist when called to the complaint under reply, I say
examine the patient remarked and submit that Dr. Kripalani is a
that “both the legs are gone and Nephrologists. I deny that Dr.
it is a gone case. Your doctor Kripalani remarked that both
should tell each and everything”. the legs are gone and it is a
But Dr. Somaya continued to gone case. I deny that Dr.
conceal the health prognosis Kripalani further observed that
from the complainant and his doctors deliberately suppressed
relatives and continued to delay the said fact from you as
in taking vital decisions. Had he alleged or at all. I say and submit
taken a decision to amputate that though the said allegations
the legs at the right time he are made by the complainant in
could have saved the life of the the name of Dr. Kripalani, the
complainant. complainants have miserably
failed to substantiate the said
allegation by filing affidavit of
Dr. Kripalani. I say and submit
that after perusing the
aforementioned allegations I
have consulted Dr. Kripalani and
Dr. Kripalani has confirmed that
he had no such occasion to
make any such observations to
the relatives of the said
complainant. I am filing the
affidavit of Dr. Kripalani to
substantiate my contention.
44. It is clear to even a novice 24. With reference to paras 44
medical student that dead and
muscles invite septicemia and 45 of the complaint under reply,
gangrene. So what was required I deny the allegations made
was a timely action to prevent therein as false save and except
further damage. But Dr. Somaya the factual position that the said
refrained from adopting the deceased died on 12.6.1998 at
requisite procedure. The 9.30 p.m. I say and submit that
patient’s legs were amputated though it is unfortunate that the
only when all the consultants said deceased died prematurely
opined that it was the only at the age of 43, even then the
procedure for saving life. Yet his complainants have no right of
negligence in taking timely whatsoever nature to make
action killed the only chance allegations against the opp.
which the patient had. parties. I say and submit that
my sympathies are with the

2
45. That it is apparent from the complainant and other family
series of events that there has members and relatives of the
been lack of diligence and an said deceased. I say and submit
established case of negligence that the said deceased died due
on the part of to medical,

2
 opposite party in providing mishap and not due to any
services
to the complainants as a result negligence either on my part or
of on
which the complainant died on the part of the staff of the
opp.
12.6.1998 at 9.30 p.m.” party no.1.”

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

averments made in the complaint before the Commission.

12. The grievance of the complainant against the appellants can

be summarized under the following heads:

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

despite his critical condition whereafter the machine

was found to be dysfunctional;

(c) Angiography was performed after 8 hours of

discovering that

blood supply has stopped;

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

theatre was available;

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

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

gangrene and did not try to treat the gangrene; and

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

support the finding that it is a case of medical

negligence.

2
13. Learned Commission while analyzing the evidence observed

that the complainant had filed evidence affidavits but the

Hospital and the Doctor, though have filed their written

versions, but have not

2
 filed evidence by way of affidavits except an affidavit of Dr.

Kripalani. We however find at the outset that such primary

observation is itself erroneous. The Hospital and the

Doctor had filed their written version by way of affidavit

dated 7.1.2000 i.e., the same date on which Dr. Kripalani had

filed an affidavit. The Commission has overlooked the fact

that written version is by way of an affidavit. Later, the

Hospital had also filed evidence affidavit on 13.07.2009

whereas the Doctor had filed a short affidavit on 30.8.2009

reiterating and confirming the statements, averments and

the contentions raised in the written version filed on

7.1.2000. Thus, there is factual error in the order of the

Commission.

14. The Commission had commented adversely against the

Doctor that he had not seen or attended the patient for

several days before his departure for his tour to U.S.A and U.K

for about a month and had not even indicated the name of

any super specialist in his field who should look after the

patient in his absence. The Commission mentioned that the

Doctor observed at the first instance within a couple of days

of admission at the Hospital that there was impending

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

timely decision for amputation of legs and by the time Dr.

2
Pachore was consulted, it was too late. Moreover, it was also

noted that Dr. Pachore had scolded Dr. Partha for the delay in

consulting him as even if the amputation was done at such

belated occasion, nothing

2
 could be said about the survival of the patient.

15. The Commission opined that considering the conditions in

India, it is very difficult to secure the presence of an expert

doctor to file an affidavit against another expert doctor and

thus it would be a case of res ipsa loquitor. It was

mentioned that though the Doctor was present at Mumbai

from 29.4.1998 to 9.5.1998, he did not give advice for

amputation of the legs and thereafter from 9.5.1998 to

7.6.1998, he went to U.S.A and U.K to attend medical

conferences. He had visited the patient only on 8.6.1998 after

several days of amputation. The Commission relied upon

judgment in Whitehouse

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

loquitor. A

reference was also made to an article “Repair of Infraneral

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

the mortality associated with repair of AAAs has been

greatly reduced by improvements in preoperative evaluation

and perioperative care. Another text book by Robert B.

Rutherford was referred to note that paraplegia was a rare

complication in the case of Aneurysms whereas in the

present matter, paraplegia occurred instantaneously.

16. Learned counsel for the appellants herein argued that the

2
 Hospital is a renowned hospital having four operation

theatres and advance machines including DSA. Three other

hospitals in Mumbai such as Jaslok Hospital, Hinduja

Hospital and Breach Candy Hospital alone

6 [1981] 1 Weekly Law Reports 246

3
had DSA machines at the relevant time. The Hospital in its

affidavit had inter alia mentioned that the DSA test is not a

bed side test. The patient has to be carefully shifted to the

cardiac cauterization department where the DSA machine

was installed. The patient hence had to be stabilized before

he was shifted to DSA department. Since the patient was put

on ventilator and on several support medications, it was not

possible to immediately undergo the DSA test. But when the

patient was taken for DSA test, the machine developed

certain technical problem. Since the DSA machine was not

working, angiography was thought to be the best possible

test and was thus conducted. The Hospital had specialized

staff in all branches of medicine and the medical assistance

as was required from time to time including nephrology,

orthopedics etc. was provided to the patient. It was argued

that the professional competence of Doctor has not been

doubted even by the Commission but two factors have been

taken against the Doctor for holding him negligent; first, that

he did not visit the patient soon after the surgery till 9/9.30

a.m. on the next day to verify the 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

3
 medical conferences.

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

negligent in

3
 providing medical care is sustainable as there are both

legal and factual errors in the findings recorded by the

Commission.

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

15.4.1998 with advice of urgent surgical repair of Aneurysum.

The patient had taken another six days to consult Doctor at

Mumbai and it was only on 21.4.1998 that the patient

was examined by the Doctor and was advised immediate

Aneurysmectomy in view of the impending gangrene.

Therefore, gangrene was not found to be impending after few

days of admission to the Hospital but even before the patient

was admitted. The patient was in critical condition when the

Doctor was consulted on 21.4.1998 and surgery was

thereafter performed within two days.

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

consequent delay in performing the test cannot be said to

be negligence on the part of the Doctor or the Hospital. The

DSA machine is a large, expensive and complicated machine

which unfortunately developed certain technical problem at

the time when patient had to be tested. Any machine can

become non-functional because of innumerable factors

beyond the human control as the machines involve various

3
mechanical, electrical and electronic components. The DSA

test was conducted in the Hospital on 22.4.1998 and hence

DSA machine cannot be said to be dysfunctional for a long

time. The alternative

3
 process to determine the blood flow was carried out by

angiography and the decision for re-exploration was taken at

12.30 p.m. No fault can be attached to the Hospital if the

operation theatres were occupied when the patient was taken

for surgery. Operation theatres cannot be presumed to be

available at all times. Therefore, non-availability of an

emergency operation theatre during the period when

surgeries were being performed on other patients is not a

valid ground to hold the Hospital negligent in any manner.

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

that a fresh graft was sutured in place after establishing the

flow. The patient was then put on ventilator and shifted to

recovery room. On 25.4.1998, a note by Dr. Bindra indicated

that the patient was seen by Dr. Shruti. It was noted that

there was no movement in both the legs but had pin prick

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

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

feet were cold. On 27.4.1998, Dr. H.S. Bindra had sought

consultation from Dr. Khadilkar giving case history that limbs

were warm and that the patient had pain in the lumber

region and was also feeling tightness in both the lower

limbs. Dr. Khadilkar noted his impressions that it was very

likely lower spinal cord/conus syndrome and thereafter

3
advised MRI of the lower cervical spine and till then to

continue with the medicine pentosiflin and lomodex and for

muscle ischemia – high CK and Myoglobulin. Dr. Khadilkar

3
 suggested the same treatment to continue on 28.4.98. On

29.4.1998, Dr. Khadilkar had reported the sensory level

dropped to upper 1/3rd of the thigh and that there was no

power in limbs. No changes were however seen in the MRI

report. It was also reported that probably myonecrosis was

playing more significant role in the weakness. The patient

was put on dialysis thereafter.

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

1.5.1998 and thereafter for many days till 23.5.1998. The

dialysis was being conducted in the meantime as well. The

patient was being monitored by Dr. Bindra throughout.

Subsequently, the patient was referred to Dr. Amarapurkar

on 12.5.1998 when it was noted that Ischemic Injury to

liver needed no treatment on 13.5.1998. The patient was

then referred to Dr. Amin for enternal nuirisim on

16.5.1998.

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

of limb arteries that both common femoral, superficial

femoral and popliteal arteries were patent. The flow in both

posterior tibial arteries was of low velocity and of venous

type, suggesting refilled flow. Dr. Pachore also examined the

patient on 27.5.1998 and observed that the patient had wet

3
gangrene below knee and was thus advised amputation. On

29.5.1998, the patient was operated for amputation below

the knee at the level of tibial tuberosity for treatment of wet

3
 gangrene and the Bilateral Guillatine Amputation was

carried out. On 30.05.1998, it was noted that the acute

renal failure was improving. Further septicemia was

diagnosed on 30.05.1998. Later, on 12.06.1998, the

patient was put on ventilator and he subsequently passed

away at 9.30 pm due to septicemic shock.

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

that Doctor was not possessed of requisite skill in carrying out

the operation. In fact, the patient was referred to him by Dr.

Deshpande keeping in view the expertise of the Doctor in

vascular surgery. There is no proof that there was any

negligence in performing the surgery on 23.4.1998 or in the

process of re-exploration on 24.4.1998. The allegation is of

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

on 23.4.1998, a delayed decision to amputate the leg

subsequent to re-exploration on 24.4.1998, and the alleged

undue foreign visit of the Doctor.

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

foreign visit, it is well known a medical professional has to

upgrade himself with the latest development in his field which

may require him to attend conferences held both in and

3
outside the country. Mere fact that the Doctor had gone

abroad cannot lead to an inference of medical negligence as

the patient was admitted in a hospital having

4
 specialists in multi-faculties. Two doctors from the unit of the

Doctor namely Dr. Bindra and Dr. Partha, both post

graduates, were present to attend to the patient. Moreover,

as per the stand of the Hospital and the Doctor, the patient

was kept in Cardio Vascular Intensive Care Unit after the

surgery and was continuously being monitored by qualified

post-graduate doctors including Dr. Nemish Shah, Head of

Cardio Vascular Surgery. The patient was even attended by

other specialist doctors as well which is evident from the brief

summary of treatment given to the patient. The experts in

the other fields have been consulted from time to time and

the treatment was modulated accordingly. In spite of the

treatment, if the patient had not survived, the doctors

cannot be blamed as even the doctors with the best of

their abilities cannot prevent the inevitable.

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

later the formation of clot was confirmed after the

angiography test was conducted at 12.30 p.m. An immediate

decision was taken for re- exploration at 3.30 p.m. The

allegation of delay in treatment after the surgery seems to be

baseless as the patient was being administered antibiotics

like Metrogyl 400 and Piperacillin Injection which are used for

treatment in gangrene. Dr. Kripalani in his affidavit denied the

4
allegation leveled by the complainant. Dr. Kripalani had

treated patient continuously including carrying out the

dialysis. In respect of the allegation that doctors failed to

amputate

4
 legs on time, efforts were being made to save the limbs as

amputation is considered as the last resort. The

amputation was done as per the advice of Dr. Pachore. In the

present era of super- specialization, one doctor is not a

solution for all problems of a patient. Each problem is dealt

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

apparent from the medical record. The stand of the

complainant is that since surgery was performed by a doctor,

he alone would be responsible for different aspects of the

treatment required and given to the patient. However, it is an

incorrect assumption to be made.

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

impending gangrene even before admission to the Hospital

but even after surgery and re-exploration, if the patient does

not survive, the fault cannot be fastened on the doctors as a

case of medical negligence. It is too much to expect from a

doctor to remain on the bed side of the patient throughout his

stay in the hospital which was being expected by the

complainant here. A doctor is expected to provide reasonable

care which is not proved to be lacking in any manner in the

present case.

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

4
of res ipsa loquitor. It is to be noted that res ipsa loquitor is

a rule of evidence. This Court in a judgment reported as

Syad Akbar v.

4
State of Karnataka7 explained the principle in a criminal

trial as under:

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

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

20. Thus, for the application of the maxim res ipsa

loquitur “no less important a requirement is that the res
must not only bespeak negligence, but pin it on the
defendant”.

4
 xxx xxx xxx

26. From the above conspectus, two lines of approach in

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

4
rule that the burden of proof of the alleged
negligence is, in the first instance, on the plaintiff. In
this view, if the nature of an accident is such that the
mere happening of it is evidence of negligence, such
as, where a motor vehicle without appar- ent cause
leaves the highway, or overturns or in fair visibility
runs into an obstacle; or brushes the branches of an
over- hanging tree, resulting in injury, or where there
is a duty on the defendant to exercise care, and the
circumstances in which the injury complained of
happened are such that with the exercise of the
requisite care no risk would in the ordinary course
ensue, the burden shifts or is in the first instance on
the defendant to disprove his liability. Such shifting or
casting of the burden on the defendant is on account
of a presump- tion of law and fact arising against the
defendant from the constituent circumstances of the
accident itself, which be- speak negligence of the
defendant. This is the view taken in several
decisions of English courts. [For instance, see
Burke v. Manchester, Sheffield & Lincolnshire Rail
Co. [(1870) 22 LJ 442] ; Moore v.R. Fox & Sons
[(1956) 1 QB
596 : (1956) 1 All ER 182] . Also see paras 70, 79
and 80 of Halsbury's Laws of England, Third Edn., Vol.
28, and the rulings mentioned in the footnotes
thereunder.]

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

loquitur is not a special rule of substantive law; that
functionally, it is only an aid in the evaluation of
evidence, “an application of the general method of
inferring one or more facts in issue from circumstances
proved in evidence”. In this view, the maxim res ipsa
loquitur does not require the raising of any presumption
of law which must shift the onus on the defen- dant. It
only, when applied appropriately, allows the drawing of
a permissive inference of fact, as distinguished
from a mandatory presumption properly so-called,
having regard to the totality of the circumstances and
probabilities of the case. Res ipsa is only a means of
estimating logical probabil- ity from the circumstances
of the accident. Looked at from this angle, the
phrase (as Lord Justice Kennedy put it [Rus- sel v.
London & South Western Railway Co, (1908) 24 TLR
4
548] ) only means, “that there is, in the circumstances
of the particular case, some evidence which, viewed not
as a matter of conjecture, but of reasonable argument,
makes it more probable that there was some
negligence, upon the facts as shown and undisputed,
than that the occurrence took place without negligence
.... It means that the circumstances are,

4
 so to speak, eloquent of the negligence of somebody
who brought about the state of things which is
complained of.”

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

Iffco Tokio General Insurance Company Limited v.

Pearl Beverages Lim- ited8 approved the aforesaid

judgment in a case of medical negli- gence being examined

by the consumer fora. It was held as under:

“86. Thus, it is used in cases of tort and where the facts

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

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

observed that the doctor cannot be held liable for medical

negligence by applying the doctrine of res ipsa loquitur for

the reason that a patient has not favourably responded to a

treatment given by a doctor or a surgery has failed. There is a

tendency to blame the doctor when a patient dies or suffers

some mishap. This is an intolerant conduct of the family

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

creased cases of manhandling of medical professionals who

worked day and night without their comfort has been very

4
 well seen in this pandemic. This Court held as under:-

8 (2021) 7 SCC 704

9(2009) 3 SCC 1

5
 “40. Simply because a patient has not favourably
responded to a treatment given by a doctor or a
surgery has failed, the doctor cannot be held
straightaway liable for medical negligence by
applying the doctrine of res ipsa loquitur. No sensible
professional would intentionally commit an act or
omission which would result in harm or injury to the
patient since the professional reputation of the
professional would be at stake. A single failure may
cost him dear in his lapse.

xxx xxx xxx

42. When a patient dies or suffers some mishap,

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

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

judgment reported as Jacob Mathew v. State of Punjab

and Anr.10 held that simple lack of care, an error of

judgment or an accident, is not a proof of negligence on

the part of a medical professional. The Court held as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by

omission to do something which a reasonable man
guided by those considerations which ordinarily
regulate the conduct of hu- man affairs would do, or
doing something which a prudent and reasonable man
would not do. The definition of negli- gence as given in
Law of Torts, Ratanlal & Dhirajlal (edited by Justice
5
 G.P. Singh), referred to hereinabove, holds good.
Negligence becomes actionable on account of injury
result-

10 (2005) 6 SCC 1

5
ing from the act or omission amounting to negligence
at- tributable to the person sued. The essential
components of negligence are three: “duty”, “breach”
and “resulting dam- age”.

(2) Negligence in the context of the medical profession

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

xxx xxx xxx

(4) The test for determining medical negligence as

laid down in Bolam case [(1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD)] , WLR at p. 586 [ [Ed.:
Also at All ER p. 121 D-F and set out in para 19, p. 19
herein.]] holds good in its ap- plicability in India.
5
xxx xxx xxx

5
 (8) Res ipsa loquitur is only a rule of evidence and
operates in the domain of civil law, specially in cases
of torts and helps in determining the onus of proof in
actions relating to negligence. It cannot be pressed
in service for determin- ing per se the liability for
negligence within the domain of criminal law. Res ipsa
loquitur has, if at all, a limited applica- tion in trial on a
charge of criminal negligence.”

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

Chirayu Health and Medicare Private Limited and

Anr.11, this Court held that the standard of care as

enunciated in Bolam case must evolve in consonance with

its subsequent interpretation by English and Indian Courts.

The threshold to prove unreasonableness is set with due

regard to the risks associated with medical treatment and

the conditions under which medical professionals’ function.

The Court held as under:

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

varying approaches to treatment. There can be a
genuine difference of opinion. However, while
adopting a course of treatment, the medical
professional must ensure that it is not unreasonable.
The threshold to prove unreasonableness is set with
due regard to the risks associated with medical
treatment and the conditions under which
medical professionals function. This is to avoid a
situation where doctors resort to “defensive
medicine” to avoid claims of negligence, often to the
detriment of the patient. Hence, in a specific case
where unreasonableness in professional conduct has
been proven with regard to the circumstances of
that case, a professional cannot escape liability
for medical evidence merely by relying on a
13 (2010) 3 SCC

5
 body of professional opinion.”

13 (2010) 3 SCC

5
32. In C.P. Sreekumar (Dr.), MS (Ortho) v. S.

Ramanujam12, this Court held that the Commission ought

not to presume that the alle- gations in the complaint are

inviolable truth even though they re- mained unsupported by

any evidence. This Court held as under:

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

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

33. In another judgment reported as Kusum Sharma and

Others v.

Batra Hospital and Medical Research Centre and

Others13, a complaint was filed attributing medical

negligence to a doctor who performed the surgery but while

performing surgery, the tumour was found to be malignant.

The patient died later on after prolonged treatment in

different hospitals. This Court held as under:

“47. Medical science has conferred great benefits on

mankind, but these benefits are attended by
considerable risks. Every surgical operation is attended
13 (2010) 3 SCC

5
 by risks. We cannot take the benefits without taking
risks. Every advancement in technique is also attended
by risks.

xxx xxx xxx

12 (2009) 7 SCC 130

13 (2010) 3 SCC

5
 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.

xxx xxx xxx

78. It is a matter of common knowledge that after

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

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

Kumar Khurana v. Joginder Singh & Others14 held that

hospital and the doctors are required to exercise sufficient

care in treating the pa- tient in all circumstances. However, in

an unfortunate case, death may occur. It is necessary that

5
 sufficient material or medical evi- dence should be available

before the adjudicating authority to arrive

14 (2021) SCC Online SC 673

6
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 medi- cal negligence. The Court held as

under:

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

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

xxx xxx xxx

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

6
 medi- cal process in their affidavit to explain there was
no negli- gence....”

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

evidence

6
 of experts to prove the alleged medical negligence except

their own affidavits. The experts could have proved if any of

the doctors in the Hospital providing treatment to the patient

were deficient or negligent in service. A perusal of the

medical record produced does not show any omission in the

manner of treatment. The experts of different specialities and

super-specialities of medicine were available to treat and

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

expected to take reasonable care but none of the

professionals can assure that the patient would overcome

the surgical procedures. Dr. Kripalani has been attributed to

have informed the complainant that the patient’s legs were

not working

but Dr. Kripalani denied all the averments by filing of an

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

negligent was res ipsa loquitor which would not be applicable

herein keeping in view the treatment record produced by the

Hospital and/or the Doctor. There was never a stage when

the patient was left unattended. The patient was in a critical

condition and if he could not survive even after surgery, the

blame cannot be passed on to the Hospital and the Doctor

who provided all possible treatment within their means and

capacity. The DSA test was conducted by the Hospital itself

6
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

6
 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.

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

Commission

holding the Hospital and the Doctor guilty of medical

negligence are not sustainable in law. Consequently, the

present appeals are allowed. The order passed by the

Commission is set aside and the complaint is dismissed.

6
38. By virtue of an interim order passed by this Court on
8.3.2010, a

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

The said

6
 amount is ordered to be treated as ex gratia payment to the

complainant and not to be recovered back by either the

Hospital or the Doctor.

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

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

6
 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10044 OF 2010

CENTRAL PUBLIC INFORMATION OFFICER,

SUPREME COURT OF INDIA ….. APPELLANT(S)

VERSUS

SUBHASH CHANDRA AGARWAL ….. RESPONDENT(S)

WITH

CIVIL APPEAL NO. 10045 OF 2010

AND

CIVIL APPEAL NO. 2683 OF 2010

JUDGMENT
SANJIV KHANNA, J.

This judgment would decide the afore-captioned

appeals preferred by the Central Public Information

Officer (‘CPIO’ for short), Supreme Court of India

(appellant in Civil Appeal Nos. 10044 and 10045 of 2010),

and Secretary General, Supreme Court of India (appellant

in Civil Appeal No. 2683 of 2010), against the common

Civil Appeal No. 10044 of 2010 & Page 1 of

 respondent – Subhash Chandra Agarwal, and seeks

Civil Appeal No. 10044 of 2010 & Page 1 of

 though it may apply even if the information is false or

partly incorrect. However, the information must not be

trivial or useless.

38. While previously information that could be considered

personal would have been protected only if it were

exchanged in a confidential relationship or considered

confidential by nature, significant developments in

jurisprudence since the 1990’s have posited the

acceptance of privacy as a separate right and something

worthy of protection on its own as opposed to being

protected under an actionable claim for breach of

confidentiality. A claim to protect privacy is, in a sense, a

claim for the preservation of confidentiality of personal

information. With progression of the right to privacy, the

underlying values of the law that protects personal

information came to be seen differently as the courts

recognised that unlike law of confidentiality that is based

upon duty of good faith, right to privacy focuses on the

protection of human autonomy and dignity by granting

the right to control the dissemination of information about

one’s private life and the right to the esteem and

respect of other people (See - Sedley LJ in Douglas v.

Civil Appeal No. 10044 of 2010 & Page 50 of
 Hello! Ltd22). In PJS v. News Group Newspapers Ltd.23, the

Supreme Court of the United Kingdom had drawn a

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

Civil Appeal No. 10044 of 2010 & Page 51 of

 distinction between the right to respect private and family

life or privacy and claims based upon confidentiality by

observing that the law extends greater protection to

privacy rights than rights in relation to confidential

matters. In the former case, the claim for misuse of

private information can survive even when information is

in the public domain as its repetitive use itself leads to

violation of the said right. The right to privacy gets the

benefit of both the quantitative and the qualitative

protection. The former refers to the disclosure already

made and what is yet undisclosed, whereas the latter

refers to the privateness of the material, invasion of which

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

confidentiality would generally fail when the information

is in public domain. The law of privacy is, therefore, not

solely concerned with the information, but more

concerned with the intrusion and violation of private

rights. Citing an instance of how publishing of defamatory

material can be remedied by a trial establishing the falsity

of such material and award of damages, whereas invasion

of privacy cannot be similarly redressed, the Court had

highlighted the reason why truth or falsity of an allegation

Civil Appeal No. 10044 of 2010 & Page 52 of

 or information may be irrelevant when it comes to

invasion of privacy. Therefore, claims for protection

against invasion of private and family life do not depend

upon confidentiality alone. This distinction is important

to

Civil Appeal No. 10044 of 2010 & Page 53 of

 PART J

The present judgment does not seek to define what the standards

for judicial appointments should be. However, what needs to be

emphasised is that the substantive standards which are borne in

mind must be formulated and placed in the public realm as a

measure that would promote confidence in the appointments

process. Due publicity to the norms which have been formulated

and are applied would foster a degree of transparency and promote

accountability in decision making at all levels within the judiciary

and the government. The norms may also spell out the criteria

followed for assessing the judges of the district judiciary for higher

judicial office. There is a vital public interest in disclosing the

basis on which those with judicial experience are evaluated for

elevation to higher judicial office particularly having regard to merit,

integrity and judicial performance. Placing the criteria followed in

making judicial appointments in the public domain will fulfil the

purpose and mandate of Section 4 of the RTI Act, engender public

confidence in the process and provides a safeguard against

extraneous considerations entering into the process.

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

New Delhi;
November 13, 2019.
113
4/13/24, CONSUMER PROTECTION COUNCIL VS M. SUNDARAM - Supreme

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

164 NATIONAL CONSUMER DISPUTES

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

Subject: Medical Negligence - Misdiagnosis and Treatment

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

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

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

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

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

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negligence No evidence that renal failure was because of administration of

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

Result: Appeal dismissed.

Advocates: Counsel for the Parties :

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

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

ORDER

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

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

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

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

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complainants the second opposite party acting negligently gave a report on

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

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

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

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

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

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4/13/24, CONSUMER PROTECTION COUNCIL VS M. SUNDARAM - Supreme

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

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

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

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

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

Appeal dismissed.

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

No. 19. MES JEMIMA GALLOWAY OR HUNTER, Pursuer

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

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

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

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

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

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

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

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

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

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

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

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

LORD CARMONT concurred.

LORD RUSSELL.—I agree with the opinion of your Lordship in the

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

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

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

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

Scotland in which a decision has been given as to the grounds on which
a doctor can be made liable in damages. In the only doctor's case
quoted to us, Farquhar v. Murray? all that was decided was that the
case was relevant for inquiry, two of the Judges indicating that " gross
negligence " must be proved and the other two not committing them•
selves on the matter. It may be said, however, that, until recent
times, the general impression has been that gross negligence must be
proved in order to render a doctor liable. The impression has been
derived from decisions and dicta pronounced in cases relating to
solicitors. Chief among the dicta is the dictum of Lord Brougham in
Purves v. Landell 6 (at p. 57) : " It is of the very essence of this action
that there should be a negligence of a crass description, which we call
crassa negiigentia ; that there should be gross ignorance ; that the
man who has undertaken to perform the duty of an attorney, or of a
surgeon, or of an apothecary (as the case may be), should have under•
taken to perform a duty professionally for which he was very ill
qualified, or if not ill qualified to discharge it, which he had so negli•
gently discharged as to damnify his employer, or deprive him of the
benefit which he had a right to expect from employing him." It may
be remarked that while the opening words of the dictum indicate that
something more than ordinary negligence is required, the words which
follow might almost serve as an illustration of what would now be
1 2
15 R. (H. L.) 83. 16 R. (H. L.) 31.
3
23 R. (H. L.) 55. * 2 F. (H. L.) 37.
6
« 3 F. 859. 4 Bell's App. 46.
 208 CASES DECIDED IN THE 1955 S. C.

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

LORD PATRICK concurred.

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

THOS. J . ABDLY , SON & Co., S.S.C., for W I L L I A M THORNTON, Glasgow—
MACPHEKSON & MACKAY, W.S., for B EOW N , MAIR , GEMMILL & H I S L O P ,
Glasgow.
1
M'L. and Rob. 595. 2
3
1932 S. C. (H. L.) 31. 23 R. (H. L.) 36.
4
6
[1943] A. C. 255. [1940] A. C. 152.
6 (1925) 94 L. J. (K. B.)791.
 Jacob Mathew vs State Of Punjab & Anr on 5

Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005

Equivalent citations: AIR 2005 SUPREME COURT 3180, 2005 AIR SCW 3685,
2005 CRILR(SC&MP) 2 667, (2005) 3 RAJ CRI C 753, (2005) 4 CTC 540 (SC),
(2005) 122 DLT 83, 2005 CRILR(SC MAH GUJ) 2 667, (2005) 33 ALLINDCAS 1
(SC), 2005 (6) SLT 1, 2005 (8) SRJ 50, 2005 (3) CPJ 9.2, 2005 ALL MR(CRI)
2567, 2005 SCC(CRI) 1369, (2005) 6 JT 584 (SC), (2006) 2 JCR 184 (SC), 2005
(6) SCALE 130, 2005 (6) SCC 1, 2005 (2) CALCRILR 472, 2005 (4) CTC 540,
2005 (3) JKJ 5, 2005 (33) ALLINDCAS 1, (2005) 3 ALL WC 2756, (2005) 3 CPR
70, (2005) 2 BOMCR(CRI) 339, (2005) 85 DRJ 330, (2005) 4 EASTCRIC 169,
(2005) 5 SUPREME 297, (2005) 4 JLJR 137, (2005) ACJ 1840, (2005) 53
ALLCRIC 251, (2005) 3 CHANDCRIC 19, (2005) 3 CRIMES 63, (2005) 4
ALLCRILR 1, (2005) 3 GUJ LR 2126, (2005) 3 KER LT 965, (2005) MAD LJ(CRI)
1077, (2005) 32 OCR 175, (2005) 4 PAT LJR 213, (2005) 3 RECCRIR 836, (2005)
5 SCJ 601, (2005) 3 TAC 716, (2005) 5 ANDHLD 52, (2005) 3 ALLCRIR 2257,
(2005) 6 SCALE 130, (2005) 3 CURCC 189, (2003) 1 JCR 314 (JHA), 2005 (3)
ANDHLT(CRI) 1 SC, (2005) 3 ANDHLT(CRI) 1, (2005) 3 CPJ 92, 2005 (2)
ALD(CRL) 334

Author: R.C. Lahoti

Bench: R.C. Lahoti, G.P. Mathur, P.K.Balasubramanyan

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

PETITIONER:
Jacob Mathew

RESPONDENT:
State of Punjab & Anr.

DATE OF JUDGMENT:

05/08/2005 BENCH:
CJI R.C. LAHOTI,G.P. MATHUR & P.K.BALASUBRAMANYAN

JUDGMENT:

J U D G M E N T R.C. LAHOTI, CJI Ashok Kumar Sharma, the respondent no.2 herein
filed a First Information Report with police station, Division No. 3, Ludhiana,
whereupon an offence under Section 304A read with Section 34 of the Indian Penal
Code (for short "the IPC") was registered. The gist of the information is that on

Indian Kanoon - 1
 Jacob Mathew vs State Of Punjab & Anr on 5
15.2.1995, the informant's father, late Jiwan Lal Sharma was

Indian Kanoon - 2
 Jacob Mathew vs State Of Punjab & Anr on 5
admitted as a patient in a private ward of CMC Hospital, Ludhiana. On 22.2.1995 at
about 11 p.m., Jiwan Lal felt difficulty in breathing. The complainant's elder brother,
Vijay Sharma who was present in the room contacted the duty nurse, who in her turn
called some doctor to attend to the patient. No doctor turned up for about 20 to 25
minutes. Then, Dr. Jacob Mathew, the appellant before us and Dr.Allen Joseph came to
the room of the patient. An oXygen cylinder was brought and connected to the mouth
of the patient but the breathing problem increased further. The patient tried to get up
but the medical staff asked him to remain in the bed. The o Xygen cylinder was found to
be empty. There was no other gas cylinder available in the room. Vijay Sharma went to
the adjoining room and brought a gas cylinder therefrom. However, there was no
arrangement to make the gas cylinder functional and in-between, 5 to 7 minutes were
wasted. By this time, another doctor came who declared that the patient was dead.
The latter part of the FIR states (as per the translation in English as filed by the
complainant):□ "□□□□□□□□the death of my father was occurred due to the
carelessness of doctors and nurses and non availability of o Xygen cylinder and the
empty cylinder was fiXed on the mouth of my father and his breathing was totally
stopped hence my father died. I sent the dead body of my father to my village for last
cremation and for information I have come to you. Suitable action be done Sd/ As per
statement of intimator the death of Jiwan Lal Sharma
has occurred due to carelessness of doctors and nurses concerned and to fit empty gas
cylinder."

On the abovesaid report, an offence under Section 304A/34 IPC was registered and
investigated. Challan was filed against the two doctors.

The Judicial Magistrate First Class, Ludhiana framed charges under Section 304A, IPC
against the two accused persons, both doctors. Both of them filed a revision in the
Court of Sessions Judge submitting that there was no ground for framing charges
against them. The revision was dismissed. The appellant filed a petition in the High
Court under Section 482 of the Code of Criminal Procedure praying for quashing of
the FIR and all the subsequent proceedings.

It was submitted before the High Court that there was no specific allegation of any act
of omission or commission against the accused persons in the entire plethora of
documents comprising the challan papers filed by the police against them. The learned
single Judge who heard the petition formed an opinion that the plea raised by the
appellant was available to be urged in defence at the trial and, therefore, a case for
quashing the charge was not made out. Vide order dated 18.12.2002, the High Court
dismissed the petition. An application for recalling the abovesaid order was moved
which too was dismissed on 24.1.2003. Feeling aggrieved by these two orders, the
appellant has filed these appeals by special leave.

According to the appellant, the deceased Jiwan Lal was suffering from cancer in an
advanced stage and as per the information available, he was, in fact, not being

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admitted by any hospital in the country because his being a case of cancer at
terminal stage. He was only required to be kept at home and given proper nursing,
food, care and solace coupled with prayers. But as is apparent from the records, his
sons are very influential persons occupying important positions in Government. They
requested the hospital authorities that come what may, even on compassionate
grounds their father may be admitted in the hospital for regulated medical treatment
and proper management of diet. It was abundantly made clear to the informant and
his other relations who had accompanied

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the deceased that the disease was of such a nature and had attained such gravity, that
peace and solace could only be got at home. But the complainant could prevail over
the doctors and hospital management and got the deceased admitted as an in-patient.
Nevertheless, the patient was treated with utmost care and caution and given all the
required medical assistance by the doctors and para-medical staff. Every conceivable
effort was made by all the attending staff comprising of doctors and nurses and other
para-medicals to give appropriate medical treatment and the whole staff danced
attendance on the patient but what was ordained to happen, did happen. The
complainant and his relations, who were misguided or were under mistaken belief as
to the facts, lodged police report against the accused persons □ wholly unwarranted
and uncalled for.

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

In Dr. Suresh Gupta's case, the patient, a young man with no history of any heart
ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal
deformity. The operation was neither complicated nor serious. The patient died. On
investigation, the cause of death was found to be "not introducing a cuffed
endotracheal tube of proper size as to prevent aspiration of blood from the wound in
the respiratory passage". The Bench formed an opinion that this act attributed to the
doctor, even if accepted to be true, could be described as an act of negligence as
there was lack of due care and precaution. But, the Court categorically held □ "for
this act of negligence he may be liable in tort, his carelessness or want of due
attention and skill cannot be described to be so reckless or grossly negligent as to
make him criminally liable".

The referring Bench in its order dated 9.9.2004 has assigned two reasons for their
disagreement with the view taken in Dr. Suresh Gupta's case which are as under:-

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

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

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

cases it has to be seen whether the impugned act was rash or negligent.
By carrying out a separate treatment for doctors by introducing degree of

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rashness or negligence, violence would be done to the plain and
unambiguous language of section 304A. If by adducing evidence it is
proved that there was no rashness or negligence involved, the trial court
dealing with the matter shall decide appropriately. But a doctor cannot be
placed at a different pedestal for finding out whether rashness or
negligence was involved.

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

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

Negligence as a tort The jurisprudential concept of negligence defies any precise

definition. Eminent jurists and leading judgments have assigned various meanings to
negligence. The concept as has been acceptable to Indian jurisprudential thought is
well-stated in the Law of Torts, Ratanlal & Dhirajlal (Twenty-fourth Edition 2002,
edited by Justice G.P. Singh). It is stated (at p.441-442) "Negligence is the breach of a
duty caused by the omission to do something which a reasonable man, guided by those
considerations which ordinarily regulate the conduct of human affairs would do, or
doing something which a prudent and reasonable man would not do. Actionable
negligence consists in the neglect of the use of ordinary care or skill towards a person
to whom the defendant owes the duty of observing ordinary care and skill, by which
neglect the plaintiff has suffered injury to his person or property. □□□□□□□ The
definition involves three constituents of negligence: (1) A legal duty to eXercise due
care on the part of the party complained of towards the party complaining the former's
conduct within the scope of the duty; (2) breach of the said duty; and (3) consequential
damage. Cause of action for negligence arises only when damage occurs; for, damage
is a necessary ingredient of this tort."

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According to Charlesworth & Percy on Negligence (Tenth Edition, 2001), in current

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

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recognized, are three: "duty", "breach" and "resulting damage", that is to say:-

1. the e X istence of a duty to take care, which is owed by the defendant

to the complainant;

2. the failure to attain that standard of care, prescribed by the law,

thereby committing a breach of such duty; and

3. damage, which is both causally connected with such breach and

recognized by the law, has been suffered by the complainant. (Para 1.23)
If the claimant satisfies the court on the evidence that these three
ingredients are made out, the defendant should be held liable in
negligence. (Para 1.24) Negligence __ as a tort and as a crime The term
'negligence' is used for the purpose of fastening the defendant with
liability under the Civil Law and, at times, under the Criminal Law. It is
contended on behalf of the respondents that in both the jurisdictions,
negligence is negligence, and jurisprudentially no distinction can be
drawn between negligence under civil law and negligence under criminal
law. The submission so made cannot be countenanced inasmuch as it is
based upon a total departure from the established terrain of thought
running ever since the beginning of the emergence of the concept of
negligence upto the modern times.

Generally speaking, it is the amount of damages incurred which is determinative of the

eXtent of liability in tort; but in criminal law it is not the amount of damages but the
amount and degree of negligence that is determinative of liability. To fasten liability in
Criminal Law, the degree of negligence has to be higher than that of negligence
enough to fasten liability for damages in Civil Law. The essential ingredient of mens
rea cannot be eXcluded from consideration when the charge in a criminal court
consists of criminal negligence. In R. v. Lawrence, [1981] 1 All ER 974 (HL), Lord
Diplock spoke in a Bench of five and the other Law Lords agreed with him. He
reiterated his opinion in R. v. Caldwell 1981(1) All ER 961 (HL) and dealt with the
concept of recklessness as constituting mens rea in criminal law. His Lordship warned
against adopting the simplistic approach of treating all problems of criminal liability as
soluble by classifying the test of liability as being "subjective" or "objective", and said
"Recklessness on the part of the doer of an act does presuppose that there is
something in the circumstances that would have drawn the attention of an ordinary
prudent individual to the possibility that his act was capable of causing the kind of
serious harmful consequences that the section which creates the offence was
intended to prevent, and that the risk of those harmful consequences occurring was
not so slight that an ordinary prudent individual would feel justified in treating them
as negligible. It is only when this is so that the doer of the act is acting 'recklessly' if,
before doing the act, he either fails to give any thought to the possibility of there being
any such risk or, having recognized that there was such risk, he nevertheless goes on

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to do it."

The moral culpability of recklessness is not located in a desire to cause harm. It

resides in the proXimity of the reckless state of mind to the state of mind present when
there is an intention to cause harm. There is, in other words, a disregard for the
possible consequences. The consequences entailed in the risk may not be wanted,
and indeed the actor may hope that they do not occur, but

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this hope nevertheless fails to inhibit the taking of the risk. Certain types of violation,
called optimizing violations, may be motivated by thrill-seeking. These are clearly
reckless.

In order to hold the eXistence of criminal rashness or criminal negligence it shall have
to be found out that the rashness was of such a degree as to amount to taking a hazard
knowing that the hazard was of such a degree that injury was most likely imminent.
The element of criminality is introduced by the accused having run the risk of doing
such an act with recklessness and indifference to the consequences. Lord Atkin in his
speech in Andrews v. Director of Public Prosecutions, [1937] A.C. 576, stated, "Simple
lack of care □ such as will constitute civil liability is not enough; for purposes of the
criminal law there are degrees of negligence; and a very high degree of negligence is
required to be proved before the felony is established." Thus, a clear distinction e Xists
between "simple lack of care" incurring civil liability and "very high degree of
negligence" which is required in criminal cases. Lord Porter said in his speech in the
same case "A higher degree of negligence has always been demanded in order to
establish a criminal offence than is sufficient to create civil liability. (Charlesworth &
Percy, ibid, Para 1.13) The fore-quoted statement of law in Andrews has been noted
with approval by this Court in Syad Akbar v. State of Karnataka (1980) 1 SCC 30.
The Supreme Court has dealt with and pointed out with reasons the distinction
between negligence in civil law and in criminal law. Their Lordships have opined that
there is a marked difference as to the effect of evidence, viz. the proof, in civil and
criminal proceedings. In civil proceedings, a mere preponderance of probability
is sufficient, and the defendant is not necessarily entitled to the benefit of every
reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to
such a moral certainty as convinces the mind of the Court, as a reasonable man,
beyond all reasonable doubt. Where negligence is an essential ingredient of the
offence, the negligence to be established by the prosecution must be culpable or gross
and not the negligence merely based upon an error of judgment.

Law laid down by Straight, J. in the case Reg v. Idu Beg (1881) 3 All. 776, has been
held good in cases and noticed in Bhalchandra Waman Pathe v. State of Maharashtra
1968 Mh.L.J. 423 ? a three-Judge Bench decision of this Court. It has been held that
while negligence is an omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would do,
or doing something which a prudent and reasonable man would not do; criminal
negligence is the gross and culpable neglect or failure to e Xercise that reasonable and
proper care and precaution to guard against injury either to the public generally or to
an individual in particular, which having regard to all the circumstances out of which
the charge has arisen, it was the imperative duty of the accused person to have
adopted.

In our opinion, the factor of grossness or degree does assume significance while
drawing distinction in negligence actionable in tort and negligence punishable as a

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crime. To be latter, the negligence has to be gross or of a very high degree.

Negligence by professionals In the law of negligence, professionals such as lawyers,

doctors, architects and others are included in the category of persons professing some
special skill or skilled persons generally. Any task which is required to be performed
with a special skill would generally be admitted or undertaken to be performed
only if the person possesses the requisite skill for

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performing that task. Any reasonable man entering into a profession which requires a
particular level of learning to be called a professional of that branch, impliedly assures
the person dealing with him that the skill which he professes to possess shall be
eXercised and eXercised with reasonable degree of care and caution. He does not
assure his client of the result. A lawyer does not tell his client that the client shall
win the case in all circumstances. A physician would not assure the patient of full
recovery in every case. A surgeon cannot and does not guarantee that the result of
surgery would invariably be beneficial, much less to the e Xtent of 100% for the person
operated on. The only assurance which such a professional can give or can be
understood to have given by implication is that he is possessed of the requisite skill
in that branch of profession which he is practising and while undertaking the
performance of the task entrusted to him he would be e Xercising his skill with
reasonable competence. This is all what the person approaching the professional can
eXpect. Judged by this standard, a professional may be held liable for negligence on
one of two findings:

either he was not possessed of the requisite skill which he professed

to have possessed, or, he did not eXercise, with reasonable competence in
the given case, the skill which he did possess. The standard to be applied
for judging, whether the person charged has been negligent or not, would
be that of an ordinary competent person eXercising ordinary skill in that
profession. It is not necessary for every professional to possess the
highest level of eXpertise in that branch which he practices. In Michael
Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA,
Sedley L.J. said that where a profession embraces a range of views as to
what is an acceptable standard of conduct, the competence of the
defendant is to be judged by the lowest standard that would be regarded
as acceptable. (Charlesworth & Percy, ibid, Para 8.03) Oft'quoted
passage defining negligence by professionals, generally and not
necessarily confined to doctors, is to be found in the opinion of McNair J.
in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R.
582, 586 in the following words:

"Where you get a situation which involves the use of some special
skill or competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill. The test is the standard
of the ordinary skilled man eXercising and professing to have that special
skill . . . A man need not possess the highest e Xpert skill; it is well
established law that it is sufficient if he e Xercises the ordinary skill of an
ordinary competent man eXercising that particular art."

(Charlesworth & Percy, ibid, Para 8.02) The water of Bolam test has ever since flown
and passed under several bridges, having been cited and dealt with in several

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judicial pronouncements, one after the other and has continued to be well received by
every shore it has touched as neat, clean and well- condensed one. After a review of
various authorities Bingham L.J. in his speech in Eckersley v. Binnie, [1988] 18
Con.L.R. 1, 79 summarised the Bolam test in the following words:-

"From these general statements it follows that a professional man should

command the corpus of knowledge which forms part of the
professional equipment of the

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ordinary member of his profession. He should not lag behind other
ordinary assiduous and intelligent members of his profession in
knowledge of new advances, discoveries and developments in his field.
He should have such an awareness as an ordinarily competent
practitioner would have of the deficiencies in his knowledge and the
limitations on his skill. He should be alert to the hazards and risks in any
professional task he undertakes to the e X tent that other ordinarily
competent members of the profession would be alert. He must bring to
any professional task he undertakes no less eXpertise, skill and care than
other ordinarily competent members of his profession would bring, but
need bring no more. The standard is that of the reasonable average. The
law does not require of a professional man that he be a paragon
combining the qualities of polymath and prophet."

(Charlesworth & Percy, ibid, Para 8.04) The degree of skill and care required by a
medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition,
Vol.30, Para 35):-

"The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must eXercise a reasonable degree of care. Neither the
very highest nor a very low degree of care and competence, judged in the
light of the particular circumstances of each case, is what the law
requires, and a person is not liable in negligence because someone else
of greater skill and knowledge would have prescribed different
treatment or operated in a different way; nor is he guilty of negligence if
he has acted in accordance with a practice accepted as proper by a
responsible body of medical men skilled in that particular art, even
though a body of adverse opinion also eXisted among medical men.

Deviation from normal practice is not necessarily evidence of negligence.

To establish liability on that basis it must be shown (1) that there is a
usual and normal practice;
(2) that the defendant has not adopted it; and (3) that the course in fact
adopted is one no professional man of ordinary skill would have taken had
he been acting with ordinary care."

Abovesaid three tests have also been stated as determinative of negligence in

professional practice by Charlesworth & Percy in their celebrated work on Negligence
(ibid, para 8.110) In the opinion of Lord Denning, as eXpressed in Hucks v. Cole,
[1968] 118 New LJ 469, a medical practitioner was not to be held liable simply
because things went wrong from mischance or misadventure or through an error of
judgment in choosing one reasonable course of treatment in preference of
another. A medical practitioner would be liable only where his conduct fell below that
of the standards of a reasonably competent practitioner in his field.

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The decision of House of Lords in Maynard v. West Midlands Regional Health

Authority, [1985] 1 All ER 635 (HL) by a Bench consisting of five Law Lords has been
accepted as having settled the law on the point by holding that it is not enough to
show that there is a body of competent professional opinion which considers that
decision of the defendant professional was a wrong decision, if there also eXists a body
of professional opinion, equally competent, which supports the decision as

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reasonable in the circumstances. It is not enough to show that subsequent events
show that the operation need never have been performed, if at the time the decision to
operate was taken, it was reasonable, in the sense that a responsible body of
medical opinion would have accepted it as proper. Lord Scarman who recorded the
leading speech with which other four Lords agreed quoted the following words of Lord
President (Clyde) in Hunter v. Hanley 1955 SLT 213 at 217, observing that the words
cannot be bettered □ "In the realm of diagnosis and treatment there is ample scope
for genuine difference of opinion and one man clearly is not negligent merely because
his conclusion differs from that of other professional men□The true test for
establishing negligence in diagnosis or treatment on the part of a doctor is whether he
has been proved to be guilty of such failure as no doctor of ordinary skill would be
guilty of if acting with ordinary care□". Lord Scarman added □ "a doctor who
professes to eXercise a special skill must eXercise the ordinary skill of his speciality.
Differences of opinion and practice e X ist, and will always e X ist, in the medical as
in other professions. There is seldom any one answer eXclusive of all others to
problems of professional judgment. A court may prefer one body of opinion to the
other, but that is no basis for a conclusion of negligence." His Lordship further added
"that a judge's 'preference' for one body of distinguished professional opinion to
another also professionally distinguished is not sufficient to establish negligence in a
practitioner whose actions have received the seal of approval of those whose opinions,
truthfully eXpressed, honestly held, were not preferred."

The classical statement of law in Bolam's case has been widely accepted as decisive
of the standard of care required both of professional men generally and medical
practitioners in particular. It has been invariably cited with approval before Courts in
India and applied to as touchstone to test the pleas of medical negligence. In tort, it is
enough for the defendant to show that the standard of care and the skill attained was
that of the ordinary competent medical practitioner eXercising an ordinary degree of
professional skill. The fact that a defendant charged with negligence acted in accord
with the general and approved practice is enough to clear him of the charge. Two
things are pertinent to be noted. Firstly, the standard of care, when assessing the
practice as adopted, is judged in the light of knowledge available at the time (of the
incident), and not at the date of trial. Secondly, when the charge of negligence arises
out of failure to use some particular equipment, the charge would fail if the equipment
was not generally available at that point of time on which it is suggested as should
have been used.

A mere deviation from normal professional practice is not necessarily evidence of

negligence. Let it also be noted that a mere accident is not evidence of negligence. So
also an error of judgment on the part of a professional is not negligence per se. Higher
the acuteness in emergency and higher the complication, more are the chances of
error of judgment. At times, the professional is confronted with making a choice
between the devil and the deep sea and he has to choose the lesser evil. The medical
professional is often called upon to adopt a procedure which involves higher element

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of risk, but which he honestly believes as providing greater chances of success for the
patient rather than a procedure involving lesser risk but higher chances of failure.
Which course is more appropriate to follow, would depend on the facts and
circumstances of a given case. The usual practice prevalent nowadays is to obtain the
consent of the patient or of the person incharge of the patient if the patient is not
be in a position to give consent before adopting a given procedure. So long as it can be
found that the procedure which was in fact adopted was one which was
acceptable to medical

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science as on that date, the medical practitioner cannot be held negligent merely
because he chose to follow one procedure and not another and the result was a
failure.

No sensible professional would intentionally commit an act or omission which would

result in loss or injury to the patient as the professional reputation of the person is at
stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the
rule of res ipsa loquitur is not of universal application and has to be applied with
eXtreme care and caution to the cases of professional negligence and in particular that
of the doctors. Else it would be counter productive. Simply because a patient has not
favourably responded to a treatment given by a physician or a surgery has failed, the
doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.

Res ipsa loquitur is a rule of evidence which in reality belongs to the law of torts.
Inference as to negligence may be drawn from proved circumstances by applying the
rule if the cause of the accident is unknown and no reasonable eXplanation as to the
cause is coming forth from the defendant. In criminal proceedings, the burden of
proving negligence as an essential ingredient of the offence lies on the prosecution.
Such ingredient cannot be said to have been proved or made out by resorting to the
said rule (See Syad Kabar v. State of Karnataka (1980) 1 SCC 30). Incidentally, it may
be noted that in Krishnan and Anr. v. State of Kerala (1996) 10 SCC 508 the Court has
observed that there may be a case where the proved facts would themselves speak of
sharing of common intention and while making such observation one of the learned
judges constituting the Bench has in his concurring opinion merely stated "res ipsa
loquitur'. Nowhere it has been stated that the rule has applicability in a criminal case
and an inference as to an essential ingredient of an offence can be found proved by
resorting to the said rule. In our opinion, a case under Section 304A IPC cannot be
decided solely by applying the rule of res ipsa loquitur.

A medical practitioner faced with an emergency ordinarily tries his best to redeem the
patient out of his suffering. He does not gain anything by acting with negligence or by
omitting to do an act. Obviously, therefore, it will be for the complainant to clearly
make out a case of negligence before a medical practitioner is charged with or
proceeded against criminally. A surgeon with shaky hands under fear of legal action
cannot perform a successful operation and a quivering physician cannot administer
the end-dose of medicine to his patient.

If the hands be trembling with the dangling fear of facing a criminal prosecution in the
event of failure for whatever reason□ whether attributable to himself or not,
neither a surgeon can successfully wield his life-saving scalper to perform an
essential surgery, nor can a physician successfully administer the life-saving dose of
medicine. Discretion being better part of valour, a medical professional would feel
better advised to leave a terminal patient to his own fate in the case of emergency
where the chance of success may be 10% (or so), rather than taking the risk of

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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 the
society.

The purpose of holding a professional liable for his act or omission, if negligent, is to
make the life safer and to eliminate the possibility of recurrence of negligence in
future. Human body and medical science □ both are too compleX to be easily
understood. To hold in favour of eXistence of negligence,

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associated with the action or inaction of a medical professional, requires an in-depth
understanding of the working of a professional as also the nature of the job and of
errors committed by chance, which do not necessarily involve the element of
culpability.

The subject of negligence in the conte Xt of medical profession necessarily calls for
treatment with a difference. Several relevant considerations in this regard are found
mentioned by Alan Merry and AleXander McCall Smith in their work "Errors, Medicine
and the Law"

(Cambridge University Press, 2001). There is a marked tendency to look

for a human actor to blame for an untoward event □ a tendency which is
closely linked with the desire to punish. Things have gone wrong and,
therefore, somebody must be found to answer for it. To draw a distinction
between the blameworthy and the blameless, the notion of mens rea has
to be elaborately understood. An empirical study would reveal that the
background to a mishap is frequently far more comple X than may
generally be assumed. It can be demonstrated that actual blame for the
outcome has to be attributed with great caution. For a medical accident
or failure, the responsibility may lie with the medical practitioner and
equally it may not. The inadequacies of the system, the specific
circumstances of the case, the nature of human psychology itself and
sheer chance may have combined to produce a result in which the
doctor's contribution is either relatively or completely blameless. Human
body and its working is nothing less than a highly comple X
machine. Coupled with the compleXities of medical science, the scope
for misimpressions, misgivings and misplaced allegations against the
operator i.e. the doctor, cannot be ruled out. One may have notions of
best or ideal practice which are different from the reality of how medical
practice is carried on or how in real life the doctor functions. The factors
of pressing need and limited resources cannot be ruled out from
consideration. Dealing with a case of medical negligence needs a deeper
understanding of the practical side of medicine.

At least three weighty considerations can be pointed out which any forum
trying the issue of medical negligence in any jurisdiction must keep in
mind. These are: (i) that legal and disciplinary procedures should be
properly founded on firm, moral and scientific grounds; (ii) that patients
will be better served if the real causes of harm are properly identified and
appropriately acted upon; and (iii) that many incidents involve a
contribution from more than one person, and the tendency is to blame the
last identifiable element in the chain of causation □ the person holding
the 'smoking gun'.

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Accident during the course of medical or surgical treatment has a wider
meaning. Ordinarily, an accident means an unintended and unforeseen
injurious occurrence; something that does not occur in the usual course
of events or that could not be reasonably anticipated (See, Black's Law
Dictionary, 7th Edition). Care has to be taken to see that the result of
an accident which is eXculpatory may not persuade the human mind to
confuse it with the consequence of negligence.

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Medical Professionals in Criminal Law The criminal law has invariably
placed the medical professionals on a pedestal different from ordinary
mortals. The Indian Penal Code enacted as far back as in the year 1860
sets out a few vocal eXamples. Section 88 in the Chapter on General
EXceptions provides eXemption for acts not intended to cause death,
done by consent in good faith for person's benefit. Section 92 provides
for eXemption for acts done in good faith for the benefit of a person
without his consent though the acts cause harm to a person and that
person has not consented to suffer such harm. There are four eXceptions
listed in the Section which is not necessary in this conteXt to deal with.
Section 93 saves from criminality certain communications made in good
faith. To these provisions are appended the following illustrations:-

Section 88 A, a surgeon, knowing that a particular operation is likely to

cause the death of Z, who suffers under a painful complaint, but not
intending to cause Z's death and intending in good faith, Z's benefit,
performs that operation on Z, with Z's consent. A has committed no
offence.

Section 92 Z is thrown from his horse, and is insensible. A, a surgeon,

finds that Z requires to be trepanned. A, not intending Z's death, but in
good faith, for Z's benefit, performs the trepan before Z recovers his
power of judging for himself. A has committed no offence.

A, a surgeon, sees a child suffer an accident which is likely to prove fatal

unless an operation be immediately performed. There is no time to
apply to the child's guardian. A performs the operation in spite of the
entreaties of the child, intending, in good faith, the child's benefit. A has
committed no offence.

Section 93 A, a surgeon, in good faith, communicates to a patient his

opinion that he cannot live. The patient dies in consequence of the shock.
A has committed no offence, though he knew it to be likely that the
communication might cause the patient's death.

It is interesting to note what Lord Macaulay had himself to say about

Indian Penal Code. We are inclined to quote a few e Xcerpts from his
speech to the eXtent relevant for our purpose from "Speeches and Poems
with the Report and Notes on the Indian Penal Code" by Lord Macaulay
(Houghton, Mifflin and Company, published in 1874).

"Under the provisions of our Code, this case would be very differently
dealt with according to circumstances. If A. kills Z. by administering
abortives to her, with the knowledge that those abortives are likely to

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cause her death, he is guilty of voluntary culpable homicide, which will be
voluntary culpable homicide by consent, if Z. agreed to run the risk, and
murder if Z. did not so agree. If A causes miscarriage to Z., not intending
to cause Z.'s death, nor thinking it likely that he shall cause Z.'s death,
but so rashly or negligently as to cause her death, A. is guilty of
culpable homicide not

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 Jacob Mathew vs State Of Punjab & Anr on 5
voluntary, and will be liable to the punishment provided for the
causing of miscarriage, increased by imprisonment for a term not
eXceeding two years. Lastly, if A took such precautions that there was
no reasonable probability that Z.'s death would be caused, and if the
medicine were rendered deadly by some accident which no human
sagacity could have foreseen, or by some peculiarity in Z.'s constitution
such as there was no ground whatever to e Xpect, A. will be liable to no
punishment whatever on account of her death, but will of course be liable
to the punishment provided for causing miscarriage.

It may be proper for us to offer some arguments in defence of this part of the
Code.

It will be admitted that when an act is in itself innocent, to punish the

person who does it because bad consequences, which no human
wisdom could have foreseen, have followed from it, would be in the
highest degree barbarous and absurd." (P.419) "To punish as a murderer
every man who, while committing a heinous offence, causes death by
pure misadventure, is a course which evidently adds nothing to the
security of human life. No man can so conduct himself as to make it
absolutely certain that he shall not be so unfortunate as to cause the
death of a fellow-creature. The utmost that he can do is to abstain from
every thing which is at all likely to cause death. No fear of punishment
can make him do more than this; and therefore, to punish a man who has
done this can add nothing to the security of human life. The only good
effect which such punishment can produce will be to deter people from
committing any of those offences which turn into murders what are in
themselves mere accidents. It is in fact an addition to the punishment of
those offences, and it is an addition made in the very worst way." (p.421)
"When a person engaged in the commission of an offence causes death by
rashness or negligence, but without either intending to cause death, or
thinking it likely that he shall cause death, we propose that he shall be
liable to the punishment of the offence which he was engaged in
committing, superadded to the ordinary punishment of involuntary
culpable homicide.

The arguments and illustrations which we have employed for the purpose
of showing that the involuntary causing of death, without either rashness
or negligence, ought, under no circumstances, to be punished at all, will,
with some modifications, which will readily suggest themselves, serve to
show that the involuntary causing of death by rashness or negligence,
though always punishable, ought, under no circumstances to be punished
as murder." (P.422) The following statement of law on criminal
negligence by reference to surgeons, doctors etc. and unskillful

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treatment contained in Roscoe's Law of Evidence (Fifteenth Edition) is
classic: "Where a person, acting as a medical man, &c., whether licensed
or unlicensed, is so negligent in his treatment of a patient that death
results, it is manslaughter if the negligence was so great as to amount to
a crime, and whether or not there was such a degree of negligence is a
question in each case for the jury. "In e Xplaining to juries the test which
they should apply to determine whether the negligence in the particular
case amounted or did not

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amount to a crime, judges have used many epithets, such as 'culpable,'
'criminal', 'gross', 'wicked', 'clear', 'complete.' But whatever epithet be
used and whether an epithet be used or not, in order to establish criminal
liability the facts must be such that, in the opinion of the jury, the
negligence of the accused went beyond a mere matter of compensation
between subjects and showed such disregard for the life and safety of
others as to amount to a crime against the State and conduct deserving
punishment." (p. 848-849) XXX XXX XXX "whether he be licensed or
unlicensed, if he display gross ignorance, or gross inattention, or gross
rashness, in his treatment, he is criminally responsible. Where a
person who, though not educated as an accoucheur, had been in the
habit of acting as a man-midwife, and had unskilfully treated a woman
who died in childbirth, was indicted for the murder, L.
Ellenborough said that there was no evidence of murder, but the jury
might convict of man-slaughter. "To substantiate that charge the prisoner
must have been guilty of criminal misconduct, arising either from the
grossest ignorance or the [most?] criminal inattention. One or other of
these is necessary to make him guilty of that criminal negligence and
misconduct which is essential to make out a case of manslaughter."
(p.849) A review of Indian decisions on criminal negligence We are
inclined to, and we must - as duty bound, take note of some of the
relevant decisions of the Privy Council and of this Court. We would like to
preface this discussion with the law laid down by the Privy Council in
John Oni Akerele v. The King AIR 1943 PC
72. A duly qualified medical practitioner gave to his patient the injection
of Sobita which consisted of sodium bismuth tartrate as given in the
British Pharmacopoea. However, what was administered was an overdose
of Sobita. The patient died. The doctor was accused of manslaughter,
reckless and negligent act. He was convicted. The matter reached in
appeal before the House of Lords. Their Lordships quashed the
conviction. On a review of judicial opinion and an illuminating discussion
on the points which are also relevant before us, what their Lordships
have held can be summed up as under:-

(i) That a doctor is not criminally responsible for a patient's death

unless his negligence or incompetence went beyond a mere matter of
compensation between subjects and showed such disregard for life and
safety of others as to amount to a crime against the State.;

(ii) That the degree of negligence required is that it should be gross, and
that neither a jury nor a court can transform negligence of a lesser
degree into gross negligence merely by giving it that appellation. □□□□
There is a difference in kind between the negligence which gives a right
to compensation and the negligence which is a crime.

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(iii) It is impossible to define culpable or criminal negligence, and it is not

possible to make the distinction between actionable negligence and
criminal negligence intelligible, eXcept by means of illustrations drawn
from actual judicial opinion.

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□□.. The most favourable view of the conduct of an accused medical man has to
be taken, for it would be most fatal to the efficiency of the medical profession if no
one could administer medicine without a halter round his neck."

(emphasis supplied) Their Lordships refused to accept the view that criminal
negligence was proved merely because a number of persons were made gravely ill
after receiving an injection of Sobita from the appellant coupled with a finding that a
high degree of care was not eXercised. Their Lordships also refused to agree with the
thought that merely because too strong a mi Xture was dispensed once and a number
of persons were made gravely ill, a criminal degree of negligence was proved.

The question of degree has always been considered as relevant to a distinction

between negligence in civil law and negligence in criminal law. In Kurban Hussein
Mohamedalli Rangawalla v. State of Maharashtra (1965) 2 SCR 622, while dealing
with Section 304A of IPC, the following statement of law by Sir Lawrence Jenkins in
Emperor v. Omkar Rampratap 4 Bom LR 679, was cited with approval:-

"To impose criminal liability under Section 304-A, Indian Penal Code, it is
necessary that the death should have been the direct result of a rash and
negligent act of the accused, and that act must be the pro X imate and
efficient cause without the intervention of another's negligence. It
must be the causa causans; it is not enough that it may have been the
causa sine qua non."

K.N. Wanchoo, J. (as he then was), speaking for the Court, observed that the abovesaid
view of the law has been generally followed by High Courts in India and was the
correct view to take of the meaning of Section 304A. The same view has been
reiterated in Kishan Chand & Anr. v. The State of Haryana (1970) 3 SCC 904.

In Juggankhan v. The State of Madhya Pradesh (1965) 1 SCR 14, the accused, a
registered Homoeopath, administered 24 drops of stramonium and a leaf of dhatura
to the patient suffering from guinea worm. The accused had not studied the effect of
such substances being administered to a human being. The poisonous contents of the
leaf of dhatura, were not satisfactorily established by the prosecution. This Court
eXonerated the accused of the charge under Section 302 IPC. However, on a finding
that stramonium and dhatura leaves are poisonous and in no system of medicine,
eXcept perhaps Ayurvedic system, the dhatura leaf is given as cure for guinea worm,
the act of the accused who prescribed poisonous material without studying their
probable effect was held to be a rash and negligent act. It would be seen that the
profession of a Homoeopath which the accused claimed to profess did not permit use
of the substance administered to the patient. The accused had no knowledge of the
effect of such substance being administered and yet he did so. In this background,
the inference of the accused being guilty of rash and negligent act was drawn against
him. In our opinion, the principle which emerges is that a doctor who administers

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a medicine known to or used in a particular branch of medical profession impliedly
declares that he has knowledge of that branch of science and if he does not, in fact,
possess that knowledge, he is prima facie acting with rashness or negligence.

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Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr. (1969) 1 SCR 206
was a case under Fatal Accidents Act, 1855. It does not make a reference to any other
decided case. The duties which a doctor owes to his patients came up for
consideration. The Court held that a person who holds himself out ready to give
medical advice and treatment impliedly undertakes that he is possessed of skill and
knowledge for that purpose. Such a person when consulted by a patient owes him
certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of
care in deciding what treatment to be given or a duty of care in the administration of
that treatment. A breach of any of those duties gives a right of action for negligence to
the patient. The practitioner must bring to his task a reasonable degree of skill and
knowledge and must eXercise a reasonable degree of care. Neither the very highest
nor a very low degree of care and competence judged in the light of the particular
circumstances of each case is what the law requires. The doctor no doubt has a
discretion in choosing treatment which he proposes to give to the patient and such
discretion is relatively ampler in cases of emergency. In this case, the death of patient
was caused due to shock resulting from reduction of the fracture attempted by doctor
without taking the elementary caution of giving anaesthetic to the patient. The doctor
was held guilty of negligence and liability for damages in civil law. We hasten to add
that criminal negligence or liability under criminal law was not an issue before the
Court □as it did not arise and hence was not considered.

In the year 1996, there are 3 reported decisions available. Indian Medical Association
v. V.P. Shantha and Ors. (1995) 6 SCC 651 is a three-Judge Bench decision. The
principal issue which arose for decision by the Court was whether a medical
practitioner renders 'service' and can be proceeded against for 'deficiency in service'
before a forum under the Consumer Protection Act, 1986. The Court dealt with how
a 'profession' differs from an 'occupation' especially in the conte X t of performance
of duties and hence the occurrence of negligence. The Court noticed that medical
professionals do not enjoy any immunity from being sued in contract or tort (i.e. in
civil jurisdiction) on the ground of negligence. However, in the observation made
in the conteXt of determining professional liability as distinguished from
occupational liability, the Court has referred to authorities, in particular, Jackson &
Powell and have so stated the principles, partly quoted from the authorities :-

"In the matter of professional liability professions differ from occupations

for the reason that professions operate in spheres where success cannot
be achieved in every case and very often success or failure depends upon
factors beyond the professional man's control. In devising a rational
approach to professional liability which must provide proper protection to
the consumer while allowing for the factors mentioned above, the
approach of the Courts is to require that professional men should
possess a certain minimum degree of competence and that they should
eXercise reasonable care in the discharge of their duties. In general, a
professional man owes to his client a duty in tort as well as in contract to

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eXercise reasonable care in giving advice or performing services. (See :
Jackson & Powell on Professional Negligence, 3rd Edn., paras 1-04, 1-05,
and 1-56)."

In Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332 a doctor registered as
medical practitioner and entitled to practice in Homoeopathy only, prescribed an
allopathic medicine to the

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patient. The patient died. The doctor was held to be negligent and liable to
compensate the wife of the deceased for the death of her husband on the ground that
the doctor who was entitled to practice in homoeopathy only, was under a statutory
duty not to enter the field of any other system of medicine and since he trespassed
into a prohibited field and prescribed the allopathic medicine to the patient causing
the death, his conduct amounted to negligence per se actionable in civil law. Dr.
Laxman Balkrishna Joshi's case (supra) was followed. Vide para 16, the test for
determining whether there was negligence on the part of a medical practitioner as laid
down in Bolam's case (supra) was cited and approved.

In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2
SCC 634 the Court noticed that in the very nature of medical profession, skills differs
from doctor to doctor and more than one alternative course of treatment are available,
all admissible. Negligence cannot be attributed to a doctor so long as he is performing
his duties to the best of his ability and with due care and caution. Merely because the
doctor chooses one course of action in preference to the other one available, he would
not be liable if the course of action chosen by him was acceptable to the medical
profession. It was a case where a mop was left inside the lady patient's abdomen
during an operation. Peritonitis developed which led to a second surgery being
performed on her, but she could not survive. Liability for negligence was fastened on
the surgeon because no valid eXplanation was forthcoming for the mop having been
left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held
applicable 'in a case like this'.

M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and
Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical
professional in civil law. It was held that an error of judgment is not necessarily
negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 ALL
ER 267, and cited with approval the following statement of law contained in the
opinion of Lord Fraser determining when an error of judgment can be termed as
negligence:-

"The true position is that an error of judgment may, or may not, be

negligent, it depends on the nature of the error. If it is one that would not
have been made by a reasonably competent professional man professing
to have the standard and type of skill that the defendant holds himself out
as having, and acting with ordinary care, then it is negligence. If, on the
other hand, it is an error that such a man, acting with ordinary care,
might have made, then it is not negligence."

In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC 182 also Bolam's test has
been approved. This case too refers to liability for compensation under civil law for
failure of sterilisation operation performed by a surgeon. We are not dealing with that
situation in the case before us and, therefore, leave it to be dealt within an

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appropriate case.

Before we embark upon summing up our conclusions on the several issues of law
which we have dealt with hereinabove, we are inclined to quote some of the
conclusions arrived at by the learned authors of "Errors, Medicine and the Law" (pp.
241-248), (recorded at the end of the book in the chapter titled □ 'Conclusion')
highlighting the link between moral fault, blame and justice in

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reference to medical profession and negligence. These are of significance and relevant
to the issues before us. Hence we quote :-

(i) The social efficacy of blame and related sanctions in particular cases of
deliberate wrongdoings may be a matter of dispute, but their necessity □
in principle □ from a moral point of view, has been accepted. Distasteful
as punishment may be, the social, and possibly moral, need to punish
people for wrongdoing, occasionally in a severe fashion, cannot be
escaped. A society in which blame is overemphasized may become
paralysed. This is not only because such a society will inevitably be
backward-

looking, but also because fear of blame inhibits the uncluttered e Xercise of judgment
in relations between persons. If we are constantly concerned about whether our
actions will be the subject of complaint, and that such complaint is likely to lead to
legal action or disciplinary proceedings, a relationship of suspicious formality between
persons is inevitable. (ibid, pp. 242-243)

(ii) Culpability may attach to the consequence of an error in circumstances where

substandard antecedent conduct has been deliberate, and has contributed to the
generation of the error or to its outcome. In case of errors, the only failure is a failure
defined in terms of the normative standard of what should have been done. There is a
tendency to confuse the reasonable person with the error-free person. While nobody
can avoid errors on the basis of simply choosing not to make them, people can choose
not to commit violations. A violation is culpable. (ibid, p. 245).

(iii) Before the court faced with deciding the cases of professional negligence there are
two sets of interests which are at stake :

the interests of the plaintiff and the interests of the defendant. A correct
balance of these two sets of interests should ensure that tort liability is
restricted to those cases where there is a real failure to behave as a
reasonably competent practitioner would have behaved. An inappropriate
raising of the standard of care threatens this balance. (ibid, p.246). A
consequence of encouraging litigation for loss is to persuade the public
that all loss encountered in a medical conte Xt is the result of the failure of
somebody in the system to provide the level of care to which the patient
is entitled. The effect of this on the doctor-patient relationship is
distorting and will not be to the benefit of the patient in the long run. It is
also unjustified to impose on those engaged in medical treatment an
undue degree of additional stress and anxiety in the conduct of their
profession. Equally, it would be wrong to impose such stress and anxiety
on any other person performing a demanding function in society. (ibid,
p.247). While eXpectations from the professionals must be realistic and

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the eXpected standards attainable, this implies recognition of the nature
of ordinary human error and human limitations in the performance of
compleX tasks. (ibid, p. 247).

(iv) Conviction for any substantial criminal offence requires that the
accused person should have acted with a morally blameworthy state of
mind. Recklessness and deliberate wrongdoing, are morally
blameworthy, but any conduct falling short of

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that should not be the subject of criminal liability. Common-law systems
have traditionally only made negligence the subject of criminal sanction
when the level of negligence has been high □ a standard traditionally
described as gross negligence. In fact, negligence at that level is likely to
be indistinguishable from recklessness. (ibid, p.248).

(v) Blame is a powerful weapon. Its inappropriate use distorts

tolerant and constructive relations between people.

Distinguishing between (a) accidents which are life's misfortune for which nobody is
morally responsible, (b) wrongs amounting to culpable conduct and constituting
grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on
account of being gross or of a very high degree requires and calls for careful, morally
sensitive and scientifically informed analysis; else there would be injustice to the
larger interest of the society. (ibid, p. 248).

Indiscriminate prosecution of medical professionals for criminal negligence is counter-

productive and does no service or good to the society.

Conclusions summed up We sum up our conclusions as under:-

(1)Negligence is the breach of a duty caused by omission to do something

which a reasonable man guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or doing something
which a prudent and reasonable man would not do. The definition of
negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by
Justice G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued. The
essential components of negligence are three: 'duty', 'breach' and
'resulting damage'.

(2) Negligence in the conteXt of medical profession necessarily calls for a

treatment with a difference. To infer rashness or negligence on the part
of a professional, in particular a doctor, additional considerations
apply. A case of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical professional.
So long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence merely
because a better alternative course or method of treatment was also
available or simply because a more skilled doctor would not have chosen
to follow or resort to that practice or procedure which the accused
followed. When it comes to the failure of taking precautions what has to

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be seen is whether those precautions were taken which the ordinary
eXperience of men has found to be sufficient; a failure to use special or
eXtraordinary precautions which might have prevented the particular
happening cannot be the standard for judging the alleged negligence. So
also, the standard of care, while assessing the practice as adopted, is
judged in the light of knowledge

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available at the time of the incident, and not at the date of trial. Similarly,
when the charge of negligence arises out of failure to use some particular
equipment, the charge would fail if the equipment was not generally
available at that particular time (that is, the time of the incident) at which
it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two
findings: either he was not possessed of the requisite skill which he
professed to have possessed, or, he did not eXercise, with reasonable
competence in the given case, the skill which he did possess. The
standard to be applied for judging, whether the person charged has been
negligent or not, would be that of an ordinary competent person
eXercising ordinary skill in that profession. It is not possible for every
professional to possess the highest level of eXpertise or skills in that
branch which he practices. A highly skilled professional may be possessed
of better qualities, but that cannot be made the basis or the yardstick for
judging the performance of the professional proceeded against on
indictment of negligence.

(4) The test for determining medical negligence as laid down in Bolam's case
[1957] 1
W.L.R. 582, 586 holds good in its applicability in India.

(5) The jurisprudential concept of negligence differs in civil and criminal

law. What may be negligence in civil law may not necessarily be
negligence in criminal law. For negligence to amount to an offence, the
element of mens rea must be shown to e Xist. For an act to amount to
criminal negligence, the degree of negligence should be much higher i.e.
gross or of a very high degree. Negligence which is neither gross nor of a
higher degree may provide a ground for action in civil law but cannot
form the basis for prosecution.

(6) The word 'gross' has not been used in Section 304A of IPC, yet it is
settled that in criminal law negligence or recklessness, to be so held,
must be of such a high degree as to be 'gross'. The e Xpression 'rash or
negligent act' as occurring in Section 304A of the IPC has to be read as
qualified by the word 'grossly'.

(7) To prosecute a medical professional for negligence under criminal law

it must be shown that the accused did something or failed to do
something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or
failed to do. The hazard taken by the accused doctor should be of such a
nature that the injury which resulted was most likely imminent.

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

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In view of the principles laid down hereinabove and the preceding discussion, we
agree with the principles of law laid down in Dr. Suresh Gupta's case (2004) 6 SCC
422 and re-affirm the same. E X abundanti cautela, we clarify that what we are
affirming are the legal principles laid down and the law as stated in Dr. Suresh
Gupta's case. We may not be understood as having eXpressed any opinion on the
question whether on the facts of that case the accused could or could not have been
held guilty of criminal negligence as that question is not before us. We also approve of
the passage from Errors, Medicine and the Law by Alan Merry and AleXander
McCall Smith which has been cited with approval in Dr. Suresh Gupta's case (noted
vide para 27 of the report).

Guidelines □ re: prosecuting medical professionals As we have noticed hereinabove

that the cases of doctors (surgeons and physicians) being subjected to criminal
prosecution are on an increase. Sometimes such prosecutions are filed by private
complainants and sometimes by police on an FIR being lodged and cognizance taken.
The investigating officer and the private complainant cannot always be supposed to
have knowledge of medical science so as to determine whether the act of the accused
medical professional amounts to rash or negligent act within the domain of criminal
law under Section 304-A of IPC. The criminal process once initiated subjects the
medical professional to serious embarrassment and sometimes harassment. He has to
seek bail to escape arrest, which may or may not be granted to him. At the end he may
be eXonerated by acquittal or discharge but the loss which he has suffered in his
reputation cannot be compensated by any standards.

We may not be understood as holding that doctors can never be prosecuted for an
offence of which rashness or negligence is an essential ingredient. All that we are
doing is to emphasize the need for care and caution in the interest of society; for, the
service which the medical profession renders to human beings is probably the noblest
of all, and hence there is a need for protecting doctors from frivolous or unjust
prosecutions. Many a complainant prefers recourse to criminal process as a tool for
pressurizing the medical professional for e Xtracting uncalled for or unjust
compensation. Such malicious proceedings have to be guarded against.

Statutory Rules or EXecutive Instructions incorporating certain guidelines need to be

framed and issued by the Government of India and/or the State Governments in
consultation with the Medical Council of India. So long as it is not done, we propose to
lay down certain guidelines for the future which should govern the prosecution of
doctors for offences of which criminal rashness or criminal negligence is an
ingredient. A private complaint may not be entertained unless the complainant has
produced prima facie evidence before the Court in the form of a credible opinion given
by another competent doctor to support the charge of rashness or negligence on the
part of the accused doctor. The investigating officer should, before proceeding against
the doctor accused of rash or negligent act or omission, obtain an independent and
competent medical opinion preferably from a doctor in government service qualified in

Indian Kanoon - 4
 Jacob Mathew vs State Of Punjab & Anr on 5
that branch of medical practice who can normally be e Xpected to give an impartial
and unbiased opinion applying Bolam's test to the facts collected in the
investigation. A doctor accused of rashness or negligence, may not be arrested in a
routine manner (simply because a charge has been levelled against him). Unless his
arrest is necessary for furthering the investigation or for collecting evidence or unless
the investigation officer feels satisfied that the doctor proceeded against would not
make himself available to face the prosecution unless arrested, the arrest may be
withheld.

Indian Kanoon - 4
 Jacob Mathew vs State Of Punjab & Anr on 5
Case at hand Reverting back to the facts of the case before us, we are satisfied that all
the averments made in the complaint, even if held to be proved, do not make out a
case of criminal rashness or negligence on the part of the accused appellant. It is not
the case of the complainant that the accused-appellant was not a doctor qualified to
treat the patient whom he agreed to treat. It is a case of non- availability of oXygen
cylinder either because of the hospital having failed to keep available a gas cylinder or
because of the gas cylinder being found empty. Then, probably the hospital may be
liable in civil law (or may not be □ we e Xpress no opinion thereon) but the accused
appellant cannot be proceeded against under Section 304A IPC on the parameters of
Bolam's test.

Result The appeals are allowed. The prosecution of the accused appellant under
Section 304A/34 IPC is quashed.

All the interlocutory applications be treated as disposed of.

Indian Kanoon - 4
 S.F. No. 1726
Supreme Court of California,Department One

Kimmell v. Skelly
130 Cal. 555 (Cal. 1900) • 62 P. 1067
Decided Nov 28, 1900

S.F. No. 1726. of the contract which should be rejected as

contrary to the intention of the parties. (Civ. Code,
556 November 28, 1900. *556
secs. 1640, 1651, 1653; Jackson v. Puget Sound
APPEAL from a judgment of the Superior Court Lumber Co., 123 Cal. 97, 100, 101; ard v. Yorba,
of the City and County of San Francisco and from 123 Cal. 447; Learned v. McCoy, 4 Ind. App.
an order denying a new trial. Edward A. Belcher, 238.) There is no consideration for plaintiff's
Judge. claim, no purchaser having been found, and this
affirmatively appears. (Civ. Code, sec. 1639;
The facts are stated in the opinion of the court.
Brickell v. Batchelder, 62 Cal. 639.) This is an
Mullany, Grant Cushing, and O.K. Cushing, for action to recover a penalty from defendant for
Appellant. doing the lawful act of trading off her own
property, after the exclusive agency really
The plaintiffs were employed as brokers to sell the
contracted for had expired, and such an action
property, and they must have found a purchaser
should fail. (3 Parsons on Contracts, 157.)
ready and willing to purchase to entitle them to
1 38 Am. Rep. 441.
their commission. (Gonzales v. Broad, 57 Cal.
224; Middelton v. Findla, 25 Cal. 76; Phelps v. 2 66 Am. St. Rep. 49.
Prusch, 83 Cal. 626; Smith v. Schiele, 93 Cal. 144;
Gunn v. Bank of California, 99 Cal. 352; Oullahan Lent Humphrey, for Respondent.
v. Baldwin, 100 Cal. 660; Martin v. Ede, 103 Cal.
The terms of the contract must govern this case,
161; Garberino v. Roberts, 109 Cal. 125; Sibbald
and the finding of a purchaser is not essential
v. Bethlehem Iron Co., 83 N.Y. 378, 383.1) On the
under its terms. (Crane v. McCormick, 92 Cal.
whole case, it appears that it was the intention of
176, 181, 182; Maze v. Gordon, 96 Cal. 61, 66, 67;
557 both parties to limit the contract to thirty *557
Rucker v. Hall, 105 Cal. 425, 426, 428.) The
days. The contract shall be construed against the
defendant, not being illiterate, was bound to know
brokers, who furnished their own studiously
the contents of the instrument she signed, and was
prepared and printed form. (Berliner v. Travelers' not entitled to rely upon any representation as to
Ins. Co., 121 Cal. 458, 466.2) And it being subject its contents. (Hawkins v. Howkins, 50 Cal. 558;
to withdrawal (Brown v. Pforr, 38 Cal. 550), the Crane v. McCormick, supra; Commissioners etc.
terms "while this contract is in force" should be of San Jose v. Younger, 29 Cal. 172; Finlayson v.
limited to the written period of thirty days Finlayson, 17 Or. 3473; 2 Kent's Commentaries,
prescribed. Under all of the circumstances, the 484; 1 Story's Equity Jurisprudence, sec. 195 et
defendant should not be further annoyed or seq.; 8 Am. Eng. Ency. of Law, 643.)
subjected to any loss or penalty, by reason of the
3 11 Am. St. Rep. 836.
claim here asserted, which depends upon a clause

1
 Kimmell v. 130 Cal. 555 (Cal.

GAROUTTE, J. entitled to their commission; and this

This action is brought by the assignee of the real circumstance alone shows that the contract was in
558 estate firm of Hooker Lent, and is based upon *558 full force and effect when the sale was made.
a broker's contract entered into by defendant April It is suggested by appellant that the sale by her
10, 1897. The material parts of this contract are as was in effect a withdrawal in writing of the
follows: "For and in consideration of the services employment of the brokers, and thereby put an
to be performed by Messrs. Hooker Lent. I hereby end to the contract. This contract cannot hear that
employ them as my sole and exclusive agents to 559 construction. A sale by the defendant, *559
sell for me that certain real property.............This followed by her deed, was not the writing
employment and authority shall continue for the contemplated by the terms of the instrument. This
full period of thirty days from the date hereof and is doubly apparent, for defendant agreed by its
thereafter until withdrawn by me in writing; and I terms to pay the brokers the amount specified if
agree to pay to said Hooker Lent, in the event of she herself sold the property; again, if this deed of
the sale of said real property by them or by anyone the property to her grantee should be construed as
else, including myself, while this contract is in a withdrawal in writing of the employment of the
force, two thousand two hundred and fifty dollars brokers, it certainly could not be construed as a
as and for their compensation hereunder." Some withdrawal of their employment before the sale
weeks after the expiration of the thirty-day period was made.
specified in the instrument, but before any
withdrawal of the employment of the brokers by It is claimed that the brokers' contract was one to
defendant in writing had been made, defendant find a purchaser, and, no purchaser having been
sold the property. This action was then brought found, no commissions were earned, and that for
and judgment recovered for the sum of two this reason the complaint does not state a cause of
thousand two hundred and fifty dollars. It is action. The contract in this case is not the ordinary
conceded that the brokers found no purchaser for broker's contract; it is more. By its terms the
the property, but the evidence shows and the brokers were entitled to two thousand two hundred
findings of fact are to the effect that they spent and fifty dollars if during the life of the instrument
time and money in an attempt to find a purchaser. they found a purchaser; or if during its life
defendant sold the property, they were likewise
As far as the merits of this litigation are entitled to the same amount. Defendant having
concerned, it is not material that the sale made by sold the property during the life of the contract,
defendant took place after the expiration of the this last provision is relied upon to support a
thirty-day period named in the contract; for the recovery, and justly so. The defendant made a
contract was in force for thirty days, and thereafter contract and had the power to make it; and there is
until a certain written notice was served on the no reason why she should be allowed to escape
brokers revoking it, and this notice had not been from its binding force, unless equitable grounds
served when the sale was made. For this reason exist which excuse her. The parties to a brokers'
the contract was in full force and effect at that contract are at liberty to make the compensation of
time. It had exactly the same binding effect upon the broker depend upon any lawful conditions they
defendant at the time of the sale, as it would have see fit to place therein. The single question is,
had if the sale had been made within the first thirty What does the contract provide?
days of its life. If the brokers had found a
purchaser at any time prior to the sale made by It is insisted that there is no consideration to
defendant, then clearly they would have been support the contract, but with this contention we
cannot agree. Defendant employed the brokers to

2
 Kimmell v. 130 Cal. 555 (Cal.

find a purchaser for her real estate, and, in entirely upon his contract with the owner of the
consideration of the services to be performed, she land." In Maze v. Gordon, 96 Cal. 61, the court
agreed to pay them two thousand two hundred and said: "It was not essential to make out plaintiff's
fifty dollars when they found a purchaser. She also case that he should have found a purchaser. By the
further agreed to pay them the same amount in terms of the employment commissions become
consideration of their services if she herself sold due `in the event of withdrawing the sale of said
the property. The consideration for her promise to property during the time.' The claim to
pay the money if the sale was made by her, was compensation under this provision of the contract
the performance of services by the brokers in is not, as respondent suggests, damages for a
seeking a purchaser. Their compensation for these breach of the contract in withdrawing the land
services was the amount of money made payable from sale. This Hamilton had a right to do, and in
560 by the instrument, and payable *560 when the land such event he became indebted to plaintiff for his
was sold by her, or some one other than the commissions." The same question arose in Rucker
brokers. This is a fair reading of its terms, and the v. Hall, 105 Cal. 426, and the court again
only reasonable construction which can be given 561 reiterated *561 the rule laid down in the two cases
it. It was proven by the evidence, and found as a cited. The question here presented is purely one of
fact by the court, that services by the brokers were construction of this particular contract, and it is
performed, and hence a consideration for her immaterial what may be the judicial construction
promise was established. given the ordinary broker's contract. The brokers
The authorities in this state hold contracts similar here did not agree to find a purchaser, but being
to the one at bar legally enforceable. In Crane v. employed to find one, they were agents of
McCormick, 92 Cal. 176, the contract provided: defendant to that end, and were legally bound to
"And in consideration of your expenses and efforts use their time and labor for the benefit of their
in attracting settlers to the county, it is agreed that principal; and it is the use of this time and labor
in event of the withdrawal of said property from which forms the consideration to support her
sale, or in event of sale through any means during promise to pay them the compensation mentioned
the continuance of this power, the same in the agreement.
commission will thus be paid as though sale had If this contract had provided in terms that, "in
been made by you." This provision was held valid, consideration of the brokers' efforts to secure a
the court saying: "Plaintiff's right of action is purchaser, whether or not those efforts were
based solely upon the provision of the contract successful, defendant would pay the amount
that if the defendants withdrew the property from agreed upon as commissions in case she herself
sale, or effected a sale in any manner during the sold the property during the life of the contract," I
year, the same commissions would be paid as if see no possible legal objection to the validity of
the sale had been made by De Jarnett Crane. . . . . that kind of a provision and in substance that is
Defendants agreed for a valuable consideration to this contract.
pay the commissions if a sale should be effected in
any way during the year; their agents, acting upon There is some claim made that fraud was practiced
the agreement, at their own expense, caused a upon defendant in securing her signature to the
large number of pamphlets and circulars to be instrument. But we find nothing in the evidence
printed and sent to various parts of the world, tending to show either fraud or mistake. It may be
advertising and offering for sale certain tracts of conceded that she signed the document without
land, including the land described in the contract. reading it in its entirety, or it may be conceded
A real estate agent's right of recovery depends even that the brokers made misstatements to her
regarding its contents; yet these things are not

3
 Kimmell v. 130 Cal. 555 (Cal.

sufficient in equity to set it aside. Defendant could

read, and she declares that she did read a part of
the writing. She was furnished with a copy of the
instrument and had ample time to examine its
contents at her leisure. No special relation of trust
or confidence existed between her and the brokers.
And even upon her own showing all that can be
said is, that she carelessly and negligently signed
the contract without reading it, and relied upon the
statements of the other party to it as to its contents,
and that party was one upon whom she had no
legal right to rely.

It is contended that some of the findings of fact are

not supported by the evidence. This may be
considered to be true as to some immaterial
findings. But as to those findings of fact necessary
to maintain the judgment we hold the evidence
562 sufficient to support them. *562

For the foregoing reasons the judgment and order

are affirmed.

Van Dyke, J., and Harrison, J., concurred.

Hearing in Bank denied.

4
 Civ. No. 4503
Court of Appeal of California, First District, Division One

Knox v. Modern Garage and Repair Shop

68 Cal.App. 583 (Cal. Ct. App. 1924) •
229 P. 880
Decided Sep 6, 1924

Civ. No. 4503. me or by any other person while this contract is in

force, as commission for said services the sum of
584 September 6, 1924. *584
$500.00, whatever the selling price may be, and
APPEAL from a judgment of the Superior Court the same commission if sold thereafter to anyone
of the City and County of San Francisco. T. I. sent by you, or who has received information
Fitzpatrick, Judge. Reversed. directly or indirectly through your office. This
employment and authorization shall continue
The facts are stated in the opinion of the court.
irrevocably for the full period of ten days from the
Daniel H. Knox and James M. Thomas for date hereof, and shall continue thereafter until this
Appellant. authority is revoked by me by giving a ten days'
notice in writing, to be sent by registered mail or
Mervyn R. Dowd for Respondents.
delivered personally at your office. In case this
contract is canceled before my property is sold I
TYLER, P. J. —
agree to reimburse you for the amount advanced
Action upon a broker's contract to recover the sum by you in advertising my property but not to
of $500 provided for therein as a commission for exceed one percent of the price asked.
the sale of a certain garage.
" "(signed)
The contract reads as follows: MODERN GARAGE REPAIR SHOP, "H. H.
BEHLMER, JR.
"San Francisco, Cal., Mar. 3, 1922.
"Accepted this 3rd day of March, 1922,
"Service Investment Co.,
"(signed) SERVICE INVESTMENT CO. by
"For value received and in consideration of
CHAS. H. LAND, JR."
services to be performed by you, I hereby employ
and authorize you as my agent to sell for me my The complaint in substance alleges defendants to
585 garage business known as Modern *585 Garage be partners doing business under the name of
located at 740 Valencia. Lease 4 1/2 years. Rent "Modern Garage and Repair Shop," and charges
per month $225. Price asked $6,500.00 Cash or that such defendants, after the execution of the
terms — cash. contract with the Service Investment Co. and
while the same was in full force and effect,
"In consideration of your offering my property for
themselves sold and transferred the said garage
sale and listing same on your records I agree to
business to certain purchasers, and that by reason
pay you at your office at San Francisco, Calif., in
thereof the commission provided for immediately
the event of a sale, transfer or exchange of said
became due and payable to said Service
property, or any part thereof, either by you or by
Investment Co. Then follows an allegation of the

1
 Knox v. Modern Garage and Repair 68 Cal.App. 583 (Cal. Ct. App.

assignment by said company of all its rights under under the impression that the duration of the same
the contract to plaintiff, and a prayer for the was limited to ten days. There is also evidence on
amount of the commission. the part of the owner who signed the contract that
Defendants, answering, admit entering into a he did not read it and knew nothing of its
contract for the sale of said business, but allege provision relating to the manner provided therein
that the same was limited to a period of ten days, for the termination thereof. On this subject,
and that plaintiff's assignor failed within said time however, there is a sharp conflict in the testimony.
to produce a purchaser able, ready, and willing to There is also evidence to show that plaintiff's
purchase, and that such contract was thereafter assignor did make efforts with defendants'
terminated and canceled by consent, and that knowledge to sell the business after the ten-day
586 plaintiff's *586 assignor thereafter made no further period. As already pointed out, there is no
attempt to carry out the contract, whereupon evidence to show that there was ever any mutual
defendants sold the business themselves. agreement to terminate the contract. Defendants
themselves testified that plaintiff's assignor never
The trial court found that defendants orally 587 said anything indicating any such intention. *587
canceled and rescinded the contract, and that
plaintiff's assignor abandoned said contract within Respondents' contention in support of the
two or three days after March 13, 1922 (being ten judgment that a contract may be mutually
days after the making of the contract), and made abandoned by the parties at any stage of its
no further attempt to sell said business, but agreed performance, and each of the parties released from
to said cancellation. Judgment was accordingly any further obligation on account thereof, and that
rendered in favor of the defendants. A motion for this result may be accomplished by parol, is not
a new trial was made and denied, and plaintiff therefore available to them, it being without
appeals. foundation in the record. No such question can
here arise. There never was any consent to the
It is appellant's contention that there is no termination of the agreement so far as the record
evidence in the record to sustain the finding that shows.
the contract was rescinded by the consent of the
parties, and that respondents, having failed to This is an action upon the contract. [2] In such an
revoke the contract by writing in the manner action a party cannot be heard to say that he had
provided for therein, the same was still in force not read the same and did not know the contents
and effect when the sale was made by thereof. [3] Where a party to a written contract
respondents, and hence plaintiff as assignee is wishes to avoid liability thereon on the ground
entitled to receive the commission therein agreed that he did not know its contents, the question, in
to be paid. the absence of misrepresentation, fraud, undue
influence, and the like, turns on whether he was
The appeal is taken by the alternative method. [1] guilty of negligence in signing without such
Respondents have not referred us to any testimony knowledge. When he is negligent in not informing
in the record to sustain the finding that the parties himself of the contents, and signs or accepts the
by oral agreement rescinded the contract. agreement with full opportunity of knowing the
However, we have read the record carefully and true facts, he cannot avoid liability on the ground
we find no evidence to support such a finding. On that he was mistaken concerning such terms in the
the contrary, the evidence shows conclusively that absence of fraud or misrepresentation.
plaintiff's assignor did nothing of the sort. There is
evidence to show that the owners of the garage did
not have a copy of the contract, and that they were

2
 Knox v. Modern Garage and Repair 68 Cal.App. 583 (Cal. Ct. App.

[4] The action being upon the contract, so far as 130 Cal. 555 [ 62 P. 1067].) Defendants made
the merits are concerned, it is not material that their contract and are bound by the terms thereof,
plaintiff's assignor failed to make a sale. The which they should have known; and there is no
contract by its provisions was to remain in full evidence in the record to show there was any fraud
force and effect for the period of ten days and or mistake in entering into the same.
thereafter until revoked by a ten days' notice in
writing. No notice of termination was ever given. Judgment reversed.
The contract, therefore, was in full force and effect
588 Knight, J., and St. Sure, J., concurred. *588
at the time the sale was made. ( Kimmel v. Skelly,

3
 Martin F. D' Souza vs Mohd. Ishfaq on 17

Martin F. D' Souza vs Mohd. Ishfaq on 17 February, 2009

Equivalent citations: AIR 2009 SUPREME COURT 2049, 2009 AIR SCW 1807,
2009 (3) ALL LJ 165, 2009 (3) AIR BOM R 242, (2009) 2 EASTCRIC 206, (2009)
2 RAJ LW 1094, (2009) 1 CLR 825 (SC), (2009) 2 PUN LR 1, (2009) 2 RECCIVR
1, (2009) 5 MAD LJ 510, (2009) 1 UC 417, (2009) 75 ALLINDCAS 36 (SC), (2009)
3 CIVLJ 137, (2009) 1 CPR 105, (2009) 1 CPR 231, (2009) 2 ANDHLD 67, (2009)
3 JCR 109 (SC), (2009) 74 ALL LR 802, (2009) 2 MAD LW 681, (2009) 2
RECCRIR 64, (2009) 2 SCALE 629, (2009) 2 ALL WC 1220, 2009 CALCRILR 2
563, (2009) 157 DLT 391, 2009 (3) SCC 1, (2009) 1 CPJ 32, 2009 (1) SCC (CRI)
958, (2009) 3 BOM CR 202

Author: Markandey Katju

Bench: R.M. Lodha, Markandey Katju

IN THE SUPREME COURT OF

INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3541 OF 2002

Martin F. D'Souza .. Appellant

-versus-

Mohd. Ishfaq .. Respondent

JUDGMENT

MARKANDEY KATJU, J.

1. This appeal against the judgment of the National Consumer Disputes Redressal
Commission, New Delhi dated 22.3.2002 has been filed under Section 23 of the
Consumer Protection Act, 1986.

2. Heard learned counsel for the parties and perused the record.

3. The brief facts of the case are narrated below :

Indian Kanoon - 1
 Martin F. D' Souza vs Mohd. Ishfaq on 17
4. In March 1991, the respondent who was suffering from chronic renal failure was
referred by the Director, Health Services to the Nanavati Hospital, Mumbai for the
purpose of a kidney transplant.

5. On or about 24.4.1991, the respondent reached Nanavati Hospital, Bombay and was
under the treatment of the appellant Doctor. At that stage, the respondent was
undergoing haemodialysis twice a week on account of chronic renal failure.
Investigations were underway to find a suitable donor. The respondent wanted to be
operated by Dr. Sonawala alone who was out of India from 1.6.1991 to 1.7.1991.

6. On 20.5.1991, the respondent approached the appellant Doctor. At the time, the
respondent, who was suffering from high fever, did not want to be admitted to the
Hospital despite the advice of the appellant. Hence, a broad spectrum antibiotic was
prescribed to him.

7. From 20.5.1991 to 29.5.1991, the respondent attended the Haemodialysis Unit at

Nanavati Hospital on three occasions. At that time, his fever remained between 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 serious condition.

9. On 30.5.1991 the respondent was investigated for renal package. The medical
report showed high creatinine 13 mg., blood urea 180 mg. The Haemoglobin of the
respondent was 4.3%. The following chart indicates the results of the study in
comparison to the normal range :-

Normal Range S. Creatinine 13.0 mgs. % 0.7 - 1.5 mgs. % Blood Urea
180 mgs. % 10-50 mgs. % Haemoglobin 4.3 gms. % 11.5-13.5 gms. %

10.On 30.5.1991, the respondent was investigated for typhoid fever, which was
negative. He was also investigated for ESR, which was e Xpectedly high in view of
renal failure and anemia infection. Urine analysis was also carried out which showed
the presence of bacteria.

11. On 3.6.1991, the reports of the urine culture and sensitivity were received. The
report showed severe urinary tract infection due to Klebsiella species (1 lac/ml.). The
report also showed that the infection could be treated by Amikacin and Methenamine
Mandelate and that the infection was resistant to other antibiotics. Methnamine
Mandelate cannot be used in patients suffering from renal failure.

12. On 4.6.1991, the blood culture report of the respondent was received, which
showed a serious infection of the blood stream (staphylococcus species).

Indian Kanoon - 2
 Martin F. D' Souza vs Mohd. Ishfaq on 17

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 times a day
for the blood infection and the respondent was transfused one unit of blood during
dialysis. Consequent upon the treatment, the temperature

Indian Kanoon - 3
 Martin F. D' Souza vs Mohd. Ishfaq on 17
of the respondent rapidly subsided.

14. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney

transplant even though the respondent had advised him that in view of his blood and
urine infection no transplant could take place for siX weeks.

15.On 8.6.1991, the respondent, despite the appellant's advice, got himself discharged
from Nanavati Hospital. Since the respondent was suffering from blood and urinary
infection and had refused to come for haemodialysis on alternate days, the appellant
suggested Injection Amikacin (500 mg.) twice a day. Certain other drugs were also
specified to be taken under the supervision of the appellant when he visited the
Dialysis Unit.

16. On 11.6.1991, the respondent attended the Haemodialysis Unit and complained
to the appellant that he had slight tinnitus (ringing in the ear). The appellant has
alleged that he immediately told the respondent to stop taking the Amikacin and
Augmentin and scored out the treatment on the discharge card. However, despite
eXpress instructions from the appellant, the respondent continued to take Amikacin till
17.6.1991. Thereafter, the appellant was not under the treatment of the appellant.

17.On 14.6.1991, 18.6.1991 and 20.6.1991 the respondent received haemodialysis at

Nanavati Hospital and allegedly did not complain of deafness during this period.

18.On 25.6.1991, the respondent, on his own accord, was admitted to Prince Aly Khan
Hospital, where he was also treated with antibiotics. The complainant allegedly did
not complain of deafness during this period and conversed with doctors normally, as is
evident from their evidence.

19. On 30.7.1991, the respondent was operated upon for transplant after he had
ceased to be under the treatment of the appellant. On 13.8.1991, the respondent was
discharged from Prince Aly Khan Hospital after his transplant. The respondent
returned to Delhi on 14.8.1991, after discharge.

20. On 7.7.1992, the respondent filed a complaint before the National Consumer
Disputes Redressal Commission, New Delhi (being Original Petition No.178 of 1992)
claiming compensation of an amount of Rs.12,00,000/- as his hearing had been
affected. The appellant filed his reply stating, inter alia, that there was no material
brought on record by the respondent to show any co- relationship between the
drugs prescribed and the state of his health. Rejoinder was filed by the respondent.

21.The National Consumer Disputes Redressal Commission (hereinafter referred to

as `the Commission') passed an order on 6.10.1993 directing the nomination of an
eXpert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to e Xamine
the complaint and give an opinion. This was done in order to get an unbiased and

Indian Kanoon - 4
 Martin F. D' Souza vs Mohd. Ishfaq on 17
neutral opinion.

22. AIIMS nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the All India
Institute of Medical Sciences was submitted before the Commission, after eXamining
the respondent. Dr. Ghosh

Indian Kanoon - 5
 Martin F. D' Souza vs Mohd. Ishfaq on 17
was of the opinion that the drug Amikacin was administered by the appellant as
a life saving measure and was rightly used. It is submitted by the appellant that the
said report further makes it clear that there has been no negligence on the part of the
appellant.

23.Evidence was thereupon led before the Commission. Two affidavits by way of
evidence were filed on behalf of the respondent, being that of his wife and himself.
The witnesses for the respondent were :-

i) The respondent Mohd. Ishfaq

ii) The wife of the respondent

iii) Dr. Ashok Sareen

iv) Dr. Vindu Amitabh

24. On behalf of the appellant, siX affidavits by way of evidence were filed. These were
of the appellant himself, Dr. Danbar (a doctor attached to the Haemodialysis
Department of Nanavati Hospital), Dr. Abhijit Joshi (a Resident Senior Houseman of
Nanavati Hospital), Mrs. Mukta Kalekar (a Senior sister at Nanavati Hospital), Dr.
Sonawala (the Urologist who referred the respondent to the appellant) and Dr.
Ashique Ali Rawal (a Urologist attached to Prince Aly Khan Hospital). The witnesses
for the appellant were:-

i) The appellant-Dr. M.F. D'Souza

ii) Dr. Danbar

iii) Dr. Upadhyay

iv) Mrs. Mukta Kalekar

v) Dr. Ashique Ali Rawal

25.The respondent also filed an opinion of the Chief of Nephrology at Fairview

General Hospital, Cleveland, Ohlo, which was heavily relied upon in the impugned
judgment. The appellant has alleged that the said opinion was written without
eXamining the respondent and, in any case, the appellant was not afforded an
opportunity of cross-eXamining the person who gave the opinion.

26.The case of the respondent, in brief, is that the appellant was negligent in
prescribing Amikacin to the respondent of 500 mg twice a day for 14 days as such
dosage was eXcessive and caused hearing impairment. It is also the case of the

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respondent that the infection he was suffering from was not of a nature as to warrant
administration of Amikacin to him.

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27.The appellant submitted before the Commission that at the time of admission of the
respondent on 29.5.1991 to the hospital, he had fever of 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 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% from
1.8.1992 as well as Rs.3 lakh as compensation as well as Rs.5000/- as costs.

28. Before discussing the facts of the case, we would like to state the law regarding
Medical Negligence in India.

29. Cases, both civil and criminal as well as in Consumer Fora, are often filed against
medical practitioners and hospitals, complaining of medical negligence against
doctors/hospitals/nursing homes and hence the latter naturally would like to know
about their liability.

30. The general principles on this subject have been lucidly and elaborately e Xplained
in the three Judge Bench decision of this Court in Jacob Mathew vs. State of Punjab
and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general
principles to specific cases.

31. For instance, in para 41 of the aforesaid decision it was observed :

"The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must eXercise a reasonable degree of care. Neither the
very highest nor a very low degree of care and competence is what the
law requires."

32. Now what is reasonable and what is unreasonable is a matter on which even
eXperts may disagree. Also, they may disagree on what is a high level of care and
what is a low level of care.

33. To give another eXample, in paragraph 12 to 16 of Jacob Mathew's case (Supra), it

has been stated that simple negligence may result only in civil liability, but gross
negligence or recklessness may result in criminal liability as well. For civil liability
only damages can be imposed by the Court but for criminal liability the Doctor can
also be sent to jail (apart from damages which may be imposed on him in a civil suit or
by the Consumer Fora). However, what is simple negligence and what is gross
negligence may be a matter of dispute even among eXperts.

34. The law, like medicine, is an ine Xact science. One cannot predict with certainty an

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outcome of many cases. It depends on the particular facts and circumstances of the
case, and also the personal notions of the Judge concerned who is hearing the case.
However, the broad and general legal principles relating to medical negligence need
to be understood.

35.Before dealing with these principles two things have to be kept in mind :

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(1)Judges are not eXperts in medical science, rather they are lay men.
This itself often makes it somewhat difficult for them to decide cases
relating to medical negligence. Moreover, Judges have usually to rely on
testimonies of other doctors which may not necessarily in all cases be
objective, since like in all professions and services, doctors too sometimes
have a tendency to support their own colleagues who are charged with
medical negligence. The testimony may also be difficult to understand,
particularly in complicated medical matters, for a layman in medical
matters like a Judge; and (2) A balance has to be struck in such cases.
While doctors who cause death or agony due to medical negligence
should certainly be penalized, it must also be remembered that like all
professionals doctors too can make errors of judgment but if they are
punished for this no doctor can practice his vocation with equanimity.
Indiscriminate proceedings and decisions against doctors are counter
productive and serve society no good. They inhibit the free e Xercise of
judgment by a professional in a particular situation.

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

General Principles Relating to Medical Negligence

37. As already stated above, the broad general principles of medical negligence have
been laid down in the Supreme Court Judgment in Jacob Mathew vs. State of Punjab
and Anr. (supra). However, these principles can be indicated briefly here :

38. The basic principle relating to medical negligence is known as the BOLAM Rule.
This was laid down in the judgment of Justice McNair in Bolam vs. Friern Hospital
Management Committee (1957) 1 WLR 582 as follows :

"Where you get a situation which involves the use of some special
skill or competence, then the test as to whether there has been
negligence or not is not the test of the man on the top of a Clapham
omnibus, because he has not got this special skill. The test is the standard
of the ordinary skilled man eXercising and professing to have that special
skill. A man need not possess the highest eXpert skill. It is
well-established law that it is sufficient if he eXercises the ordinary skill
of an ordinary competent man eXercising that particular art."

Bolam's test has been approved by the Supreme Court in Jacob Mathew's case.

39.In Halsbury's Laws of England the degree of skill and care required by a medical
practitioner is stated as follows :

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"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

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
each case, is what the law requires, and a person is not liable in
negligence because someone else of greater skill and knowledge
would have prescribed different treatment or operated in a different
way; nor is he guilty of negligence if he has acted in accordance with a
practice accepted as proper by a responsible body of medical men skilled
in that particular art, even though a body of adverse opinion also e Xisted
among medical men.

Deviation from normal practice is not necessarily evidence of negligence.

To establish liability on that basis it must be shown (1) that there is a
usual and normal practice;
(2) that the defendant has not adopted it; and (3) that the course in fact
adopted is one no professional man of ordinary skill would have taken had
he been acting with ordinary care."

(emphasis supplied)

40. Eckersley vs. Binnie (1988) 18 Con LR 1 summarized the Bolam test in the following
words :

"From these general statements it follows that a professional man should

command the corpus of knowledge which forms part of the professional
equipment of the ordinary member of his profession. He should not lag
behind other ordinary assiduous and intelligent members of his
profession in the knowledge of new advances, discoveries and
developments in his field. He should have such an awareness as an
ordinarily competent would have of the deficiencies in his knowledge and
the limitations on his skill. He should be alert to the hazards and risks in
any professional task he undertakes to the e X tent that other ordinarily
competent members of the profession would be alert. He must bring to
any professional task he undertakes no less eXpertise, skill and care than
other ordinarily competent members of his profession would bring, but
need bring no more. The standard is that of the reasonable average. The
law does not require of a professional man that he be a paragon
combining the qualities of a polymath and prophet."

41. A medical practitioner is not liable to be held negligent simply because things
went wrong from mischance or misadventure or through an error of judgment in
choosing one reasonable course of treatment in preference to another. He would be
liable only where his conduct fell below that of the standards of a reasonably
competent practitioner in his field. For instance, he would be liable if he leaves a
surgical gauze inside the patient after an operation vide Achutrao Haribhau Khodwa &
others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong
part of the body, and he would be also criminally liable if he operates on someone for

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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.

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43.It is not enough to show that there is a body of competent professional opinion
which considers that the decision of the accused professional was a wrong decision,
provided there also eXists a body of professional opinion, equally competent, which
supports the decision as reasonable in the circumstances. As Lord Clyde stated in
Hunter vs. Hanley 1955 SLT 213 :

"In the realm of diagnosis and treatment there is ample scope for genuine
difference of opinion and one man clearly is not negligent merely because
his conclusion differs from that of other professional men. The true test
for establishing negligence in
diagnosis or treatment on the part of a doctor is whether he has been
proved to be guilty of such failure as no doctor of ordinary skill would be
guilty of if acting with ordinary care. "

(emphasis supplied)

44. The standard of care has to be judged in the light of knowledge available at the
time of the incident and not at the date of the trial. Also, where the charge of
negligence is of failure to use some particular equipment, the charge would fail if
the equipment was not generally available at that point of time.

45. The higher the acuteness in an emergency and the higher the complication, the
more are the chances of error of judgment. At times, the professional is confronted
with making a choice between the devil and the deep sea and has to choose the lesser
evil. The doctor is often called upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as providing greater chances of
success for the patient rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to follow, would depend on the
facts and circumstances of a given case but a doctor cannot be penalized if he adopts
the former procedure, even if it results in a failure. The usual practice prevalent
nowadays is to obtain the consent of the patient or of the person in-charge of the
patient if the patient is not in a position to give consent before adopting a given
procedure.

46. There may be a few cases where an eXceptionally brilliant doctor performs an
operation or prescribes a treatment which has never been tried before to save the life
of a patient when no known method of treatment is available. If the patient dies or
suffers some serious harm, should the doctor be held liable? In our opinion he should
not. Science advances by eXperimentation, but eXperiments sometime end in failure
e.g. the operation on the Iranian twin sisters who were joined at the head since birth,
or the first heart transplant by Dr. Barnard in South Africa. However, in such cases it
is advisable for the doctor to eXplain the situation to the patient and take his written
consent.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
47.Simply because a patient has not favourably responded to a treatment given by a
doctor or a surgery has failed, the doctor cannot be held straightway liable for medical
negligence by applying the doctrine of res ipsa loquitur. No sensible professional
would intentionally commit an act or omission which would result in harm or injury to
the patient since the professional reputation of the professional would be at stake. A
single failure may cost him dear in his lapse.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
48.As observed by the Supreme Court in Jacob Mathew's case :

"A medical practitioner faced with an emergency ordinarily tries his best
to redeem the patient out of his suffering. He does not gain anything by
acting with negligence or by omitting to do an act. Obviously, therefore,
it will be for the complainant to clearly make out a case of negligence
before a medical practitioner is charged with or proceeded against
criminally. A surgeon with shaky hands under fear of legal action cannot
perform a successful operation and a quivering physician cannot
administer the end-dose of medicine to his patient.

If the hands be trembling with the dangling fear of facing a criminal

prosecution in the event of failure for whatever reason - whether
attributable to himself or not, neither can a surgeon successfully wield his
life-saving scalpel to perform an essential surgery, nor can a physician
successfully administer the life-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 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 a tendency to blame the
doctor for this. Things have gone wrong and, therefore, somebody must be punished
for it. However, it is well known that even the best professionals, what to say of the
average professional, sometimes have failures. A lawyer cannot win every case in his
professional career but surely he cannot be penalized for losing a case provided he
appeared in it and made his submissions.

50.To fasten liability in criminal proceedings e.g. under Section 304A IPC the degree
of negligence has to be higher than the negligence which is enough to fasten liability
in civil proceedings. Thus for civil liability it may be enough for the complainant to
prove that the doctor did not e X ercise reasonable care in accordance with the
principles mentioned above, but for convicting a doctor in a criminal case, it must also
be proved that this negligence was gross amounting to recklessness.

51. The difference between simple negligence and gross negligence has broadly
been eXplained in paragraphs 12 to 16 of Jacob Mathew's case, though difficulties may
arise in the application of the principle in particular cases. For instance, if a mop is
left behind in the stomach of a patient while doing an operation, would it be simple
negligence or gross negligence? If a scissors or sharp edged medical instrument is left
in the patient's body while doing the operation would that make a difference from
merely leaving a mop?

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 Martin F. D' Souza vs Mohd. Ishfaq on 17

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.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
53.Judged by this standard, the professional may be held liable for negligence on the
ground that he was not possessed of the requisite skill which he professes to have.
Thus a doctor who has a qualification in Ayurvedic or Homeopathic medicine will be
liable if he prescribes Allopathic treatment which causes some harm vide Poonam
Verma vs. Ashwin Patel & Ors. (1996) 4 SCC 332. In Dr. Shiv Kumar Gautam vs.
Alima, Revision Petition No.586 of 1999 decided on 10.10.2006, the National
Consumer Commission held a homeopath liable for negligence for prescribing
allopathic medicines and administering glucose drip and giving injections.

Protection to Doctors in Criminal Cases

54.In para 52 of Jacob Mathew's case the Supreme Court realizing that doctors have
to be protected from frivolous complaints of medical negligence, has laid down certain
rules in this connection :

(i) A private complaint should not be entertained unless the

complainant has produced prima facie evidence before the court in
the form of a credible opinion given by another competent doctor to
support the charge of rashness or negligence on the part of the accused
doctor.

(ii) The investigating officer should, before proceeding against the doctor
accused of rash or negligent act or omission, obtain an independent and
competent medical opinion, preferably from a doctor in government
service, qualified in that branch of medical practice who can normally be
eXpected to give an impartial opinion applying the Bolam test.

(iii) A doctor accused of negligence should not be arrested in a routine

manner simply because a charge has been leveled against him.

Unless his arrest is necessary for furthering the investigation or for collecting
evidence or unless the investigating officer feels satisfied that the doctor proceeded
against would not make himself available to face the prosecution unless arrested, the
arrest should be withheld.

Precautions which Doctor/Hospitals/Nursing Homes should take :

(a) Current practices, infrastructure, paramedical and other staff, hygiene

and sterility should be observed strictly. Thus, in Sarwat Ali Khan vs.
Prof. R. Gogi and others Original Petition No.181 of 1997, decided on
18.7.2007 by the National Consumer Commission, the facts were that
out of 52 cataract operations performed between 26th and 28th
September, 1995 in an eye hospital 14 persons lost their vision in the
operated eye. An enquiry revealed that in the Operation Theatre two

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
autoclaves were not working properly. This equipment is absolutely
necessary to carry out sterilization of instruments, cotton, pads, linen,
etc., and the damage occurred because of its absence in working
condition. The doctors were held liable.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
(b) No prescription should ordinarily be given without actual eXamination.
The tendency to give prescription over the telephone, e Xcept in an acute
emergency, should be avoided.

(c) A doctor should not merely go by the version of the patient

regarding his symptoms, but should also make his own analysis
including tests and investigations where necessary.

(d) A doctor should not eXperiment unless necessary and even then he
should ordinarily get a written consent from the patient.

(e) An e X pert should be consulted in case of any doubt. Thus, in Smt.

Indrani Bhattacharjee, Original Petition No.233 of 1996 decided by the
National Consumer Commission on 9.8.2007, the patient was diagnosed
as having `Mild Lateral Wall Eschemia'. The doctor prescribed medicine
for gastro-entiritis, but he e Xpired. It was held that the doctor was
negligent as he should have advised consulting a Cardiologist in
writing.

(f) Full record of the diagnosis, treatment, etc. should be maintained.

Application of the above mentioned general principles to

particular cases : Decisions of the Court

55.In Pt. Parmanand Katara vs. Union of India & Others AIR 1989 SC 2039, the
petitioner referred to a report published in the newspaper "The Hindustan Times" in
which it was mentioned that a scooterist was knocked down 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 kilometers away
authorized to handle medico-legal cases. The injured was then taken to that hospital
but by the time he could reach, the victim succumbed to his injuries.

56. The Supreme Court referred to the Code of Medical Ethics drawn up with the
approval of the Central Government under Section 33 of the Indian Council Medical
Act and observed "Every doctor whether at a Government Hospital or otherwise has
the professional obligation to eXtend his services for protecting life. The obligation
being total, absolute and paramount, laws of procedure whether in statutes or
otherwise cannot be sustained and, therefore, must give way."

57.The Supreme Court held that it is the duty of the doctor in an emergency to begin
treatment of the patient and he should not await the arrival of the police or to
complete the legal formalities. The life of a person is far more important than legal

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
formalities. This view is in accordance with the Hippocratic oath of doctors.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
58.Although this decision has laid down that it is the duty of a doctor to attend to a
patient who is brought to him in an emergency, it does not state what penalty will be
imposed on a doctor who refuses to attend the said patient. Consequently it will
depend on the fact and circumstances of the case. However, this case is important
because nowadays health care has often become a business, as is mentioned in George
Bernard Shaw's play "The Doctor's Dilemma". The medical profession is a noble
profession and it should not be brought down to the level of a simple business or
commerce. The truth of the matter, sadly, is that today in India many doctors (though
not all) have become totally money-minded, and have forgotten their Hippocratic oath.
Since most people in India are poor the consequence is that for them proper medical
treatment is neXt to impossible, and hence they have to rely on quacks. This is a
disgrace to a noble profession.

59.In Paschim Banga Khet Mazdoor Samity and others vs. State of West Bengal and
Another AIR 1996 SC 2426, the Supreme Court held that the denial of emergency aid
to the petitioner due to the non availability of bed in the Government Hospital
amounts to the violation of the right to life under Article 21 of the Constitution. The
Court went on to say that the Constitutional obligation imposed on the State by
Article 21 cannot be abdicated on the ground of financial constraint.

60. In Md. Suleman Ansari (D.M.S.) vs. Shankar Bhandari (2005) 12 SCC 430 the
respondent suffered a fracture of his hand. He went to the appellant who held himself
out to be a qualified medical practitioner. The appellant bandaged the respondent's
hand and prescribed certain medicines. He was ultimately taken to another doctor but
by this time the damage to his hand was permanent. It was found that the appellant
was not a qualified doctor to give treatment to the respondent. The Supreme Court
had directed him to pay Rs.80,000 as compensation to the respondent.

61. In Surendra Chauhan vs. State of M.P. (2000) 4 SCC 110, the appellant was
having a degree of Bachelor of Medicine in Electrohomoeopathy from the Board of
Electrohomoeopathy Systems of Medicines, Jabalpur (M.P.). He did not possess any
recognized medical qualification as defined in the Indian Medical Council Act, 1956.
Yet he performed an operation to terminate the three month pregnancy in a woman,
who died in the clinic due to shock due to non application of anesthesia. The Supreme
Court confirmed his sentence but reduced it to one and a half years rigorous
imprisonment under Section 314/34 IPC and a fine of Rs.25000 payable to the mother
of the deceased.

62.In State of Haryana and others vs. Raj Rani (2005) 7 SCC 22 it was held that if a
child is born to a woman even after she had undergone a sterilization operation by a
surgeon, the doctor was not liable because there cannot be a 100% certainty that no
child will be born after a sterilization operation. The Court followed the earlier view of
another three Judge Bench in State of Punjab vs. Shiv Ram & others (2005) 7 SCC 1.
These decisions will be deemed to have overruled the two Judge Bench decision in

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
State of Haryana and Others vs. Smt. Santra AIR 2000 SC 1888 in which it was held
that if a child is born after the sterilization operation the surgeon will be liable for
negligence.

63.In P.N. Rao vs. G. Jayaprakasu AIR 1990 AP 207, the plaintiff was a brilliant young
boy who had passed the pre-University course securing 100% marks in Mathematics
and 93.5% in physical sciences. He was also getting a monthly scholarship. He was
offered a seat in B.E. Degree course in

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
four Engineering Colleges. He had a minor ailment - chronic nasal discharge - for
which his mother took him to a doctor for consultation who diagnosed the disease as
Nasal Allergy and suggested operation for removal of tonsils. He was admitted in the
Government General Hospital, Guntur and the operation was performed. He did not
regain consciousness even after three days and thereafter for another 15 days he was
not able to speak coherently. When he was discharged from hospital, he could only
utter a few words and could not read or write and lost all his knowledge and learning.
His father took him to Vellore where he was e Xamined 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 e Xamining the witnesses including the Professor
of Anaesthesiology held that defendants were clearly negligent in discharging their
duties and the State Government was vicariously liable.

64.In Dr. Laxman Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Another AIR
1969 SC 128, a patient had suffered from fracture of the femur. The accused doctor
while putting the leg in plaster used manual traction and used eXcessive force for this
purpose, with the help of three men, although such traction is never done under
morphia alone but done under proper general anaesthesia. This gave a tremendous
shock causing the death of the boy. On these facts the Supreme Court held that the
doctor was liable to pay damages to the parents of the boy.

65. In Dr. Suresh Gupta vs. Government of N.C.T. of Delhi and another AIR 2004 SC
4091, the appellant was a doctor accused under Section 304A IPC for causing death of
his patient. The operation performed by him was for removing his nasal deformity. The
Magistrate who charged the appellant stated in his judgment that the appellant while
conducting the operation for removal of the nasal deformity gave incision in a wrong
part and due to that blood seeped into the respiratory passage and because of that the
patient collapsed and died. The High Court upheld the order of the Magistrate
observing that adequate care was not taken to prevent seepage of blood resulting in
asphyXia. The Supreme Court held that from the medical opinions adduced by the
prosecution the cause of death was stated to be `not introducing a cuffed endotracheal
tube of proper size as to prevent aspiration of blood from the wound in the
respiratory passage.' The Supreme Court held that this act attributed to the doctor,
even if accepted to be true, can be described as a negligent act as there was a lack of
care and precaution. For this act of negligence he was held liable in a civil case but it
cannot be described to be so reckless or grossly negligent as to make him liable in a
criminal case. For conviction in a criminal case the negligence and rashness should be
of such a high degree which can be described as totally apathetic towards the patient.

66. In Dr. Sr. Louie and Anr. vs. Smt. Kannolil Pathumma & Anr. the National
Consumer Commission held that Dr. Louie showed herself as an M.D. although she
was only M.D. Freiburg, a German Degree which is equivalent to an M.B.B.S. degree
in India. She was guilty of negligence in treating a woman and her baby which died.

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There was vacuum slip, and the baby was delivered in an asphyXiated condition.

67. In Nihal Kaur vs. Director, P.G.I.M.S.R. (1996) CPJ 112 a patient died a day after
surgery and the relatives found a pair of scissors utilized by the surgeon while
collecting the last remains. The doctor was held liable and a compensation of Rs.1.20
lakhs was awarded by the State Consumer Forum,

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Chandigarh.

68. In Spring Medows Hospital & Another vs. Harjol Ahluwalia thr' K.S. Ahluwalia
& Another (1998) CPJ 1, a minor child was admitted by his parents to a nursing home
as he was suffering fever. The patient was admitted and the doctor diagnosed typhoid
and gave medicines for typhoid fever. A nurse asked the father of the patient to get
an injection Lariago which was administered by the nurse to the patient who
immediately collapsed. The doctor was eXamined and testified that the child
suffered a cardiac arrest on account of the medicine having being injected which led
to brain damage. The National Commission held that the cause of cardiac arrest was
intravenous injection of Lariago of such a high dose. The doctor was negligent in
performing his duty because instead of administering the injection himself he
permitted the nurse to give the injection. There was clear dereliction of duty on the
part of the nurse who was not even a qualified nurse and was not registered with any
nursing council of any State. Both the doctor and nurse and the hospital were found
liable and Rs.12.5 lakhs was awarded as compensation to the parents.

69.In Consumer Protection Council and Others vs. Dr. M. Sundaram and Another
(1998) CPJ 3, the facts were that one Mrs. Rajalaxmi was admitted to a nursing home
which diagnosed the ailment as Hodgkin's Lymphoma. She was administered Endo Xan
injection five doses in five days. She was referred to another doctor who was an ENT
specialist, who after eXamination opined that no lymph glands were seen. A sample of
her bone marrow was sent to an Oncologist who opined that the picture does not fit
with Hodgkin's disease but the patient had megaloblastic anemia in the bone marrow.
Subsequently she was discharged from the nursing home and was advised to visit
CMC Vellore for treatment. The patient consulted another doctor who diagnosed the
same as renal failure. The complainant alleged that the first doctor failed and
neglected to refer the matter to a Cancer Specialist but wrongly diagnosed the ailment
of the patient as Hodgkin's Lymphoma and had unnecessarily administered injection of
EndoXan and because of the toXicity of that drug the kidney cells of the patient got
destroyed resulting in renal failure for which she had to undergo kidney
transplantation which led to her death. The National Commission, upholding the State
Commission decision, held that there was no negligence on the part of the doctor
who had consulted a pathologist, and in the light of discussion with him and on
inspection of some more slides of bone marrow specimens which also revealed the
same finding, namely, e Xistence of deposits of Hodgkin's Lymphoma, proceeded to
administer the patient injections of Endo Xan. It was held on the basis of medical
opinion that any prudent consultant physician would not delay the
commencement of chemotherapy where repeated eXamination of the bone marrow
slides had yielded the report that the Hodgkin's deposits were present. Endo Xan is a
drug of choice in the treatment of Hodgkin's Lymphoma and there was no negligence
on the part of the doctor.

70.In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and Another (1998)

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CPJ 110, the complainant's wife suffered from Sinusitis and was advised surgery by
the doctor. She had suffered a massive heart attack while in the operation theatre. The
State Commission found that necessary precautions and effective measures were
taken to save the deceased and dismissed the complaint. The State Commission relied
on the affidavits of four doctors who opined that there was no negligence. The
complainant had not given any eXpert evidence to support his allegation and in
these circumstances it was held that no case was made out against the doctor.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
71. In A. S. Mittal & Anr. vs. State of U.P. & Ors. JT 1989 (2) SC 419, 1989 (3) SCC
223 a free eye camp was organized for ophthalmic surgical treatment to patients.
However, the eyes of several patients after operation were irreversibly damaged,
owing to post-operative infection of the intra ocular cavities of the eyes, caused by
normal saline used at the time of surgery. The Supreme Court directed the State
Government to pay Rs.12,500/- as compensation to each victim as there was a clear
negligence.

72.In Indian Medical Association vs. V.P. Shantha 1995(6) SCC 651 (vide para 37) it
has been held that the following acts are clearly due to negligence :

□ (i) Removal of the wrong limb;

(ii) Performance of an operation
on the wrong patient;
(iii) Giving injection of a drug to
which the patient is
allergic without looking
into the out-patient
card
containing the warning;

(iv) Use of wrong gas during

the course of an anaesthetic,
etc.

73. From the aforementioned principles and decisions relating to medical

negligence, with which we agree, it is evident that doctors and nursing
homes/hospitals need not be unduly worried about the performance of their functions.
The law is a watchdog, and not a bloodhound, and as long as doctors do their duty
with reasonable care they will not be held liable even if their treatment was
unsuccessful.

74.However, every doctor should, for his own interest, carefully read the Code of
Medical Ethics which is part of the Indian Medical Council (Professional Conduct,
Etiquette and Ethics) Regulations, 2002 issued by the Medical Council of India
under Section 20A read with Section 3(m) of the Indian Medical Council Act. 1956.

75. Having mentioned the principles and some decisions relating to medical
negligence (with which we respectfully agree), we may now consider whether the
impugned judgment of the Commission is sustainable. In our opinion the judgment of
the Commission cannot be sustained and deserves to be set aside.

76.The basic principle relating to the law of medical negligence is the Bolam Rule
which has been quoted above. The test in fiXing negligence is the standard of the

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
ordinary skilled doctor eXercising and professing to have that special skill, but a
doctor need not possess the highest e Xpert skill. Considering the facts of the case we
cannot hold that the appellant was guilty of medical negligence.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
77. The facts of the case reveal that the respondent was suffering from chronic renal
failure and was undergoing haemodialysis twice a week on that account. He was
suffering from high fever which remained between 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 Mandelate. Since
Methenamine Mandelate cannot be used in patients suffering from renal failure,
Amikacin injection was administered to him.

78.A perusal of the complaint filed by the respondent before the National Commission
shows that his main allegation is that he suffered hearing impairment due to the
negligence of the appellant herein who allegedly prescribed overdose of Amikacin
injections without caring about the critical condition of the respondent which did not
warrant that much dose. The complainant (respondent herein) has alleged that due to
this medical negligence the complainant has suffered mental torture and frustration
and other signs of helplessness and is feeling totally handicapped, and his efficiency in
office has got adversely affected. It may be mentioned that the respondent is working
as EXport Promotion Officer in the Ministry of Commerce, Udyog Bhawan, New Delhi.

79.The case of the appellant, however, is that the complainant was referred to the
appellant by Dr.
F. P. Soonawalla, the renowned Urologist of Bombay. The complainant had consulted
Dr. F. P. Soonawalla who had referred the complainant to the appellant for routine
Haemodialysis and pre-transplant treatment. In our opinion, the very fact that Dr.
Soonawalla referred the complainant to the appellant is an indication that the
appellant has a good reputation in his field, because Dr. Soonawalla is an eminent
doctor of India of international repute, and he would not have ordinarily referred a
patient to an incompetent doctor. This is one factor which goes in favour of the
appellant, though of course it is not conclusive.

80. It appears that after the complainant was referred to the appellant by Dr.
Soonawalla he met the appellant for the first time on 24.4.1991 as an outdoor patient
in the Haemodialysis Unit attached to Bulabhai Nanavati Hospital, Bombay. After
eXamining the complainant, the appellant found that the complainant was a patient of
Chronic Renal Failure due to Bilateral Poly Cystic Kidneys. Hence the appellant
suggested to the complainant to have Haemodialysis twice a week as an outdoor
patient. The complainant was also investigated to find a suitable kidney donor.

81. The appellant has alleged in his written statement filed before the National
Commission that the complainant was in a hurry to have a quick kidney transplant by
Dr. Soonawalla and he was very obstinate, stubborn and short- tempered. Dr.
Soonawalla was out of India from 1.6.1991 to 1.7.1991. On 20.5.1991, the complainant
approached the appellant with high fever of 101-103OF, and the appellant suggested
immediate admission of the complainant in the hospital for detailed investigation

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
and treatment but the complainant refused to get himself admitted and refused to
comply with the advice. Hence the appellant was obliged to put the complainant on a
Broad Spectrum Antibiotic AmpoXim 500 mg four times a day and Tab. Crocin - SOS
fever.

82. From 21.5.1991, the complainant attended the Haemodialysis unit of the hospital
on three occasions and informed the appellant that the fever had not yet remitted.
The appellant again

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
advised the complainant to get admitted in hospital, but he refused the advice on
account of his obstinacy.

83. On 29.5.1991, the complainant was in a serious condition having high fever of
104OF. After much persuasion he finally agreed to be admitted for final investigation
and got admitted in the hospital on 29.5.1991.

84. The complainant was investigated on 30.5.1991 and his report showed High
Creatinine - 13 mg., Blood Urea - 180 mg and Haemoglobin 4.3% which was 5 days
prior to the commencement of the injection Amikacin and not after the said injection.

85.In our opinion it is clear that the respondent already had high Blood Creatinine,
Blood Urea and low Haemoglobin before the injection of Amikacin. He had also high
fever which was on account of serious blood and urinary tract infection. The appellant
was of the view that the respondent's infection could only be treated by injection of
Amikacin, as Methenamine Mandelate could not be used due to his chronic renal
failure. The respondent's report also established his resistance to all other antibiotics.
Gastroscopy was done on 4.6.1991 and Amikacin was administered after test dosage
only from 5.6.1991. Amikacin was administered on 5th, 6th and 7th June, 1991 and at
this stage he did not complain of any side effects and his temperature subsided
rapidly. On 5.6.1991, he was administered Cap. Augmentin 375 mg three times a day
for his serious Blood Infection and he was also transferred one Unit of Blood during
dialysis and his temperature subsided rapidly and he felt much better.

86. The appellant advised the respondent in view of his blood infection that he should
not get transplanted for siX weeks, but the complainant/respondent insisted on getting
the transplant although he was not medically in fit condition. Hence the appellant
advised the respondent to further stay in the hospital for some time, but the
respondent did not agree and he started shouting at the top of his voice and insisted to
be discharged from the hospital on his own on 8.6.1991 at 9 a.m..

87.In view of his insistence the respondent was discharged from the hospital on his
own on 8.6.1991 at 9 a.m.. The appellant suggested alternate day Haemodialysis but
the respondent refused saying that he was staying too far away and could not come
three times a week for Haemodialysis. In this situation, the appellant was left with no
choice but to suggest Injection Amikacin (500 mg) twice a day in view of the
respondent's infection and delicate condition and his refusal to visit the
Haemodialysis facility on alternate dates. The appellant also suggested the following
drugs under the supervision of the doctor when he would visit the dialysis unit:

"1. Injection Amikacin 500 mg twice a day X 10 days for urinary tract infection.

2. Cap. Augmentine 375 mg 3 times a day for 6 weeks for blood infection

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
3. Cap. Becosule tab daily

Indian Kanoon - 3
 Martin F. D' Souza vs Mohd. Ishfaq on 17
4. Tab. Folvite 1 tab. Daily

5.Syrup AlluduX

6. Injection EngreX once a month for 2 months

7.Cap. Bantes 100 mg twice a day"

88. It appears that the respondent attended the Haemodyalsis unit where he met the
appellant on 11th, 14th, 18th and 20th June, 1991. Thereafter the respondent did not
come to the hospital.

89. On 11.6.1991 the respondent complained to the appellant of slight tinnitus or

ringing in the ear. The appellant immediately reviewed the treatment on the discharge
card in possession of the respondent and asked the said respondent and also asked his
attendant i.e. his wife to stop Injection Amikacin and Cap. Augmantine verbally, and
also marked `X' on the discharge card in his own hand writing on 11.6.1991 i.e. 3 days
after discharge. Hence, as per direction of the appellant the respondent should have
stopped receiving Injection Amikacin after 10.6.1991, but on his own he kept on
taking Amikacin Injections. The Discharge Card as per the respondent's complaint
clearly shows that the said injection had been `X' crossed, and he was directed not to
take the said injection from 11.6.1991 i.e. on his very first complaint when he made
mention of ringing in the ears or tinnitus.

90. On perusal of the XeroX copies of the papers of the Cash Memo supplied by the
respondent as per anneXure `4' it is in our opinion evident that the respondent
continued to take the medicine against the advice of the appellant, and had
unilaterally been getting injected as late as 17.6.1991, i.e. 7 days after he had been
instructed verbally and in writing in the presence of his attendant i.e. his wife and
staff members of the said hospital to stop Injection Amikacin/Cap. Augmantine
because of tinnitus as early as on 11.6.1991.

91. On 19.6.1991 a relative of the respondent who identified himself on the phone as
one Mr. Khan from Byculla rang up and stated that the said respondent was once
again running high fever. The appellant once again immediately advised him urgent
admission to the said hospital which the respondent refused to comply and said that
he would go elsewhere.

92.From the above facts it is evident that the appellant was not to blame in any way
and it was the non-cooperative attitude of the respondent, and his continuing with the
Amikacin injection even after 11.6.1991 which was the cause of his ailment, i.e. the
impairment of his hearing. A patient who does not listen to his doctor's advice often
has to face the adverse consequences.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
93. It is evident from the fact that the respondent was already seriously ill before
he met the appellant. There is nothing to show from the evidence that the appellant
was in any way negligent, rather it appears that the appellant did his best to give good
treatment to the respondent to save his life but the respondent himself did not
cooperate.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
94. Several doctors have been eXamined by the National Commission and we have
read their evidence which is on record. Apart from that, there is also the opinion of
Prof. P. Ghosh of All India Institute of Medical Sciences who had been nominated by
AIIMS as requested by the Commission, which is also on record. It has been stated by
Dr. Ghosh that many factors in the case of renal diseases may cause hearing loss. Prof.
Ghosh has stated that it is impossible to foretell about the sensitivity of a patient to a
drug, thereby making it difficult to assess the contributions towards toXicity by the
other factors involved. Hearing loss in renal patients is a comple X problem which is a
result of many adverse and unrelated factors. Generally, the state of hearing of a renal
patient at any time is more likely to be the result of a multifactorial effect than the
response to a single agent.

95.Prof Ghosh has no doubt mentioned that concomitant use of Aminoglycoside

antibiotics (e.g. Amikacin) and loop diuretic may lead to summation and potentiation
of ototoXic effect, and the patient has a higher risk factor of hearing impairment if
there is a higher dose of Amikacin. However, he has stated that such gross
impairment of the balancing function has perhaps been wrought by a combination of
factors.

96.Prof Ghosh has also opined that the Amikacin dose of 500 mg twice a day for 14
days prescribed by the doctor was a life saving measure and the appellant did not
have any option but to take this step. Life is more important than saving the function
of the ear. Prof Ghosh was of the view that antibiotics was rightly given on the report
of the sensitivity test which showed that the organisms were sensitive to Amikacin.
Hence the antibiotic, was not blindly used on a speculation or as a clinical eXperiment.

97.Prof Ghosh mentioned that in the literature on Amikacin it has been mentioned that
in a life threatening infection adult dosage may be increased to 500 mg every eight
hours but should not be administered for longer than 10 days.

98. In view of the opinion of Prof Ghosh, who is an e Xpert of the All India Institute of
Medical Sciences, we are clearly of the view that the appellant was not guilty of
medical negligence and rather wanted to save the life of the respondent. The
appellant was faced with a situation where not only was there kidney failure of the
patient, but also urinary tract infection and blood infection. In this grave situation
threatening the life of the patient the appellant had to take drastic steps. Even if he
prescribed Amikacin for a longer period than is normally done, he obviously did it to
save the life of the respondent.

99.We have also seen the evidence of other doctors as well as the affidavits filed
before the National Commission. No doubt some of the doctors who have deposed in
this case have given different opinions, but in cases relating to allegations of medical
negligence this Court has to eXercise great caution.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
100. Dr. Ashok Sareen who is MD in medicine and trained in Nephrology has in his
evidence stated that for Kidney failure patients one has to be very careful with the
drug Amikacin. He stated that he uses the drug only when other antibiotics have failed
or cannot be used. It should be used with wide intervals and only when absolutely
necessary and when no other drug is available. When asked

Indian Kanoon - 3
 Martin F. D' Souza vs Mohd. Ishfaq on 17
whether Amikacin should be given to a patient with 10 days stretch, as was prescribed
by the appellant in this case, Dr. Sareen replied that it was difficult to give an answer
to that question because it depends entirely on the treating physician. Dr. Sareen has
admitted that giving Amikacin injection twice a day for 14 days can cause nerve
deafness which means losing one's hearing. No doubt, Dr. Sareen in his cross-
eXamination stated that he would have prescribed the dose given to the respondent
differently but he has not stated what would be the dose he would have prescribed.

101.We have also perused the evidence of Dr. Vindu Amitabh, who is a MD in
medicine in Safdarjung hospital and looking after Nephrology also. He has stated that
normally Amikacin is given for 5 to 7 days twice daily. However, he has also stated
that in severe circumstances it can be given for a longer period but if the patient is
developing complications then the doses should be stopped immediately. If there is no
substitute for it then Amikacin should be given in a very guarded dose. He has
admitted that Amikacin can lead to deafness.

102.In the affidavit of Dr. Raval of the Bombay Indian Inhabitant, who has been
practicing in Urology for several years it is stated that the respondent had undergone
a kidney transplant operation under Dr. Raval's supervision on 30th July 1991 at the
Prince Alikhan Hospital, Bombay and he was discharged on 13th August, 1991. Dr.
Raval has stated in his affidavit that during the time the respondent was under his
care he had a free conversation in English and Urdu without the aid of interpreter and
he did not complain of suffering any hearing problem until he was discharged in the
middle of August 1991. An affidavit to the same effect has been given by Dr. Kirti
L. Upadhyaya, of Bombay Indian Inhabitant, who is also a Nephrologist. He stated that
the respondent did not complain of any hearing problem to him also.

103. An affidavit has also been filed by Dr. Sharad M. Sheth, of Bombay Indian
Inhabitant who is also MD qualified in Nephrology. He also stated in paragraph 3 of
his affidavit as follows:-

"I state that in the circumstances of the case when Klebsiella Organism
was found resistant to all powerful drugs inclusive of Augmentin with the
eXception of Amikacin any nephrologist of a reasonable standard of
proficiency would have prescribed "Amikacin" drug in measured doses as
a life saving drug despite the well established fact that this drug might
cause `tinnitus' or partial hearing impairment which is reversible, to
almost complete eXtent in most of the cases after discontinuation of the
drug as soon as any of the above symptoms makes its appearance. I state
that in this situation, `Amikacin' could not have been avoided if the
danger to the 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. Ishaq, who was suffering from a renal failure in
addition to the above specific infections appears to be correct."

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 Martin F. D' Souza vs Mohd. Ishfaq on 17

104. The appellant has also filed his own affidavit before the National Consumer
Commission which we have perused. We have also seen the affidavit of Dr. Ashok L.
Kirpalani of Lady Ratan Tata Medical Centre, Bombay, who is MD in Nephrology. He
stated that the medicine prescribed by the appellant was absolutely right in the
circumstances in view of the fact, that the patient was suffering serious life
threatening infection.

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
105 We may also refer to the affidavit of Mrs. Mukta Kolekar of Bombay Indian
Inhabitant, who is a Senior Sister attached to the hospital. She has stated in her
affidavit as follows :-

"I know Dr. Martin F.D'Souza who is a Nephrologist and who is attached
to the said hospital since 1984. I say that I know Mr. Mohd. Ishaq. I
distinctly remember him, as very few patients are as ill-tempered
arrogant and obstinate like him. The said Mohd. Ishaq came to the said
hospital as an outdoor as well as indoor patient for Haemodialysis on
a number of occasions commencing from the month of April, 14th 1991
till 20th June, 1991 till 8th June, 1991 until suo moto he left the hospital. I
say that on 11th June,1991 the said Mohd. Ishaq came to the hospital for
the purpose of Haemodialysis. He had come of his own and he had no
problem either in walking or in hearing. Nothing abnormal was found in
him. However, during Haemodialysis, he complained to the Doctor of
ringing in the ears and thereupon Dr. Martin F.D'Souza called for the
Discharge Card of the said Mohd. Ishaq and verified the medicine and
injections which were prescribed 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 staff members
not to give that injection at all, and also told the said Mohd. Ishaq and his
wife who had accompanied him, not to take or get administered the said
injection.

I say that after 11th June, 1991, the said Mohd. Ishaq came to the
hospital as an outdoor patient on 14th June, 17th June and 20th June,
1991 and did not make any complaint of any nature whatsoever with
regard to his hearing faculties. On the contrary, he used to have
conversation and used to respond to the same as an ordinary man. The
said Mohd. Ishaq used to come to hospital on his own without the
assistance or help of anybody and after the dialysis also he used to go on
his own. Thus, until 20th June, 1991, the said Mohd. Ishaq had no
problems either in hearing or in movement of the limbs or parts of his
body or in lifting parts of his body or in walking."

106. From these deposition and affidavits it cannot be said that the appellant was
negligent. In fact most of the doctors who have deposed or given their affidavits
before the Commission have stated that the appellant was not negligent.

107. In his written statement filed before the National Commission the appellant has
stated in paragraph 9 (q-r) as follows :

"(q) On the 11th June,1991 the Complainant complained to Opposite Party of slight

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
tinnitus or ringing in the ear. Opposite Party immediately reviewed the treatment on
the discharge card in possession of the Complainant and asked the said Complainant
and also made his attendant i.e. his wife to understand and asked her also to stop
Injection Amikacin and Cap. Augmentin verbally as well as marked `X' on the
discharge card in his own hand writing i.e. on 11th June, 1991 i.e. 3 days after
discharge. Therefore, as per direction Opposite Party Complainant could have taken
or

Indian Kanoon - 4
 Martin F. D' Souza vs Mohd. Ishfaq on 17
received Injection Amikacin only upto 10th June, 1991 when he showed the very
first and Preliminary side effect of Injection Amikacin. Discharge Card as per the
Complainant's Complaint AnneXure `3'speaks clearly that the said Injection has been
`X' crossed and he was directed not to take the said Injection from 11th June, 1991 i.e.
on his very first complaint he made of ringing in the ears, or tinnitus.

(r) On perusal of the XeroX copies of the papers of the Cash Memo supplied by the
Complainant as per AnneXure `4' it is evident that the Complainant against the advice
of the Opposite Party and in breach of assurances, high handedly and unilaterally had
been getting injected as late as 17th June, 1991 i.e. 7 days after he had been
instructed verbally and in writing in the presence of his attendant
i.e. his wife and staff members of the said hospital to stop Injection Amikacin/Cap.
Augmentin because of tinnitus as early as 11th June, 1991"

108. We see no reason to disbelieve the above allegations of the appellant that on
11.6.1991 he had asked the respondent to stop taking Amikacin injections, and in fact
this version is corroborated by the testimony of the Senior Sister Mukta Kolekar in her
affidavit, relevant part of which has been quoted above. Hence, it was the respondent
himself who is to blame for having continued Amikacin after 11.6.1991against the
advice of the appellant.

109.Moreover, in the statement of Dr. Ghosh before the National Consumer Dispute
Redressal Commission it has been stated that it is by no means established that
Amikacin alone can cause deafness. Dr. Ghosh stated that there are 8 factors that
can cause loss of hearing. Moreover, there are conflicting versions about the
deafness of the respondent. While the respondent stated that he became deaf in June
1991, most of the Doctors who filed affidavits before the Commission have stated that
they freely conversed with him in several meetings much after 21st June and in fact up
to the middle of August 1991.

110. The National Commission had sought the assistance of AIIMS to give a report
about the allegations of medical negligence against the appellant. AIIMS had
appointed Dr. Ghosh to investigate the case and submit a report and Dr. Ghosh
submitted a report in favour of appellant. Surprisingly, the Commission has not placed
much reliance on the report of Dr. Ghosh, although he is an outstanding ENT
specialist of international repute.

111. We have carefully perused the judgment of the National Commission and we
regret that we are unable to concur with the views eXpressed therein. The
Commission, which consists of laymen in the field of medicine, has sought to
substitute its own views over that of medical e Xperts, and has practically acted as
super-specialists in medicine. Moreover, it has practically brushed aside the evidence
of Dr. Ghosh, whose opinion was sought on its own direction, as well as the affidavits
of several other doctors (referred to above) who have stated that the appellant acted

Indian Kanoon - 4
 Martin F. D' Souza vs Mohd. Ishfaq on 17
correctly in the situation he was faced.

112. The Commission should have realized that different doctors have different
approaches, for instance, some have more radical while some have more conservative
approaches. All doctors cannot be fitted into a straight-jacketed formula, and cannot
be penalized for departing from that

Indian Kanoon - 4
 Martin F. D' Souza vs Mohd. Ishfaq on 17
formula.

113. While this Court has no sympathy for doctors who are negligent, it must also be
said that frivolous complaints against doctors have increased by leaps and bounds in
our country particularly after the medical profession was placed within the purview of
the Consumer Protection Act. To give an eXample, earlier when a patient who had a
symptom of having a heart attack would come to a doctor, the doctor would
immediately inject him with Morphia or Pethidine injection before sending him to the
Cardiac Care Unit (CCU) because in cases of heart attack time is the essence of
the matter. However, in some cases the patient died before he reached the hospital.
After the medical profession was brought under the Consumer Protection Act vide
Indian Medical Association vs. V.P. Shantha 1995 (6) SCC 651 doctors who administer
the Morphia or Pethidine injection are often blamed and cases of medical negligence
are filed against them. The result is that many doctors have stopped giving (even as
family physicians) Morphia or Pethidine injection even in emergencies despite the fact
that from the symptoms the doctor honestly thought that the patient was having a
heart attack. This was out of fear that if the patient died the doctor would have to face
legal proceedings.

114. Similarly in cases of head injuries (which are very common in road side accidents
in Delhi and other cities) earlier the doctor who was first approached would started
giving first aid and apply stitches to stop the bleeding. However, now what is often
seen is that doctors out of fear of facing legal proceedings do not give first aid to the
patient, and instead tell him to proceed to the hospital by which time the patient may
develop other complications.

115. Hence Courts/Consumer Fora should keep the above factors in mind when
deciding cases related to medical negligence, and not take a view which would be in
fact a disservice to the public. The decision of this Court in Indian Medical Association
vs. V.P. Shantha (Supra) should not be understood to mean that doctors should be
harassed merely because their treatment was unsuccessful or caused some
mishap which was not necessarily due to negligence. In fact in the aforesaid decision
it has been observed (vide para 22) :-

"In the matter of professional liability professions differ from other

occupations for the reason that professions operate in spheres where
success cannot be achieved in every case and very often success or
failure depends upon factors beyond the professional man's
control."...............

116. It may be mentioned that the All India Institute of Sciences has been doing
outstanding research in Stem Cell Therapy for the last eight years or so for treating
patients suffering from paralysis, terminal cardiac condition, parkinsonism, etc,
though not yet with very notable success. This does not mean that the work of Stem

Indian Kanoon - 4
 Martin F. D' Souza vs Mohd. Ishfaq on 17
Cell Therapy should stop, otherwise science cannot progress.

117. We, therefore, direct that whenever a complaint is received against a doctor or
hospital by the Consumer Fora (whether District, State or National) or by the Criminal
Court then before issuing notice to the doctor or hospital against whom the
complaint was made the Consumer Forum or

Indian Kanoon - 4
 Martin F. D' Souza vs Mohd. Ishfaq on 17
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
medical negligence should notice be then issued to the concerned doctor/hospital. This
is necessary to avoid harassment to doctors who may not be ultimately found to be
negligent. We further warn the police officials not to arrest or harass doctors unless
the facts clearly come within the parameters laid down in Jacob Mathew's case
(supra), otherwise the policemen will themselves have to face legal action.

118. In the present case the appellant was faced with an eXtremely serious situation.
Had the appellant been only suffering from renal failure it is possible that a view could
be taken that the dose prescribed for the appellant was e Xcessive. However, the
respondent was not only suffering from renal failure but he was also suffering from
urinary tract infection and also blood infection i.e Septicaemia which is blood
poisoning caused by bacteria or a toXin. He had also eXtremely high urea. In this
eXtremely serious situation, the appellant had naturally to take a drastic measure to
attempt to save the life of the respondent. The situation was aggravated by the non-
cooperation of the respondent who seems to be of an assertive nature as deposed by
the witnesses. EXtraordinary situations require eXtraordinary remedies. Even
assuming that such a high dose of Amikacin would ordinarily lead to hearing
impairment, the appellant was faced with a situation between the devil and the deep
sea. If he chose to save the life of the patient rather than his hearing surely he cannot
faulted.

119. In the present case the blood urea of the respondent was found to be 180 mgs.%
whereas normally it should not eXceed 10-50 mgs.%. This shows that very serious
infection in the kidney of the respondent was taking place which required drastic
measures.

120. The allegation against the appellant is that he gave overdose of the antibiotic. In
this connection it may be mentioned that antibiotics are usually given for a minimum
of five days, but there is no upper limit to the number of days for which they should
continue, and it all depends on the condition of the patient. Giving lesser dose of
antibiotic may create other complications because it can cause resistance in the
bacteria to the drug, and then it will be more difficult to treat.

121. As regards the impairment of hearing of the respondent it may be mentioned

that there is no known antibiotic drug which has no side effect. Hence merely because
there was impairment in the hearing of the respondent that does not mean that the
appellant was negligent. The appellant was desperately trying to save the life of the
respondent, which he succeeded in doing. Life is surely more important than side
effects.

122. For eXample many Anti Tubercular drugs (e.g. Streptomycin) can cause

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
impairment of hearing. Does this mean that TB patients should be allowed to die and
not be given the Anti Tubercular drug because it impairs the hearing? Surely the
answer will be in the negative.

123. The courts and Consumer Fora are not e Xperts 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

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 Martin F. D' Souza vs Mohd. Ishfaq on 17
ends of making money. However, the entire medical fraternity cannot be blamed or
branded as lacking in integrity or competence just because of some bad apples.

124. It must be remembered that sometimes despite their best efforts the treatment
of a doctor fails. For instance, sometimes despite the best effort of a surgeon, the
patient dies. That does not mean that the doctor or the surgeon must be held to be
guilty of medical negligence, unless there is some strong evidence to suggest that he
is.

125. On the facts of this particular case, we are of the opinion that the appellant was
not guilty of medical negligence. Resultantly, the appeal is allowed; the impugned
judgment and order of the National Commission is set aside. No costs.

......................J. [MARKANDEY KATJU]...............J. [R.M. LODHA] New Delhi, February

17,
2009.

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 Moni vs State Of Kerala on 4

Moni vs State Of Kerala on 4 February, 2011

Author: P.Bhavadasan

Bench: P.Bhavadasan

IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 832 of 2000(G)

1. MONI
... Petitioner

Vs

1. STATE OF
KERALA ... Respondent

For Petitioner :SRI.GEORGE THOMAS

(MEVADA)

For Respondent :GOVERNMENT

PLEADER The Hon'ble MR. Justice P.BHAVADASAN

Dated :04/02/2011

O R D E R
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
S.A. No. 832 of 2000
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 4th day of February, 2011.

JUDGMENT

The courts below found that the first defendant in O.S. 711 of 1996 before the
Munsiff's court, Ernakulam to be negligent in treating the plaintiff in the suit, whereby
she had to incur heavy damages for further treatment at a different hospital. The
aggrieved first defendant has come up in appeal. The parties and facts are hereinafter
referred to as they are available before the trial court.

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 Moni vs State Of Kerala on 4
2. It is not in dispute that the plaintiff was admitted in General Hospital, Ernakulam in
the early hours of 26.6.1995. On the said day, at about 8.30 a.m. the first defendant is
said to have eXamined her and according to the plaintiff she and her husband were
told that a surgery is necessary to cure her illness. The plaintiff speaks about some
payments made to the doctor. Several tests were done on 1.7.1995, 4.7.1995 and
8.7.1995. All along, according to the plaintiff, the first defendant reiterated that a
surgery was the only option. According to the plaintiff, it so happened that the
Minister for Health happened to visit the hospital and the husband of the plaintiff
complained about the hospital building. It is also stated that somebody had
complained to the Minister about bribes being insisted by the first defendant and that
annoyed and irritated him. He thereafter became indifferent and careless in treating
the plaintiff and discharged her on 11.7.1995 when she had not recovered from her
illness. Thereafter she had to go to Ernakulam Medical Centre and to undergo a
surgery. She had incurred heavy eXpenses and had undergone lot of sufferings.
Pointing out that the need for operation arose due to the negligence on the part of the
first defendant doctor, the suit was laid for damages.

3. The first defendant resisted the suit. He denied the allegations in the plaint and
pointed out that he had done what a doctor would do in the circumstances under
which the plaintiff was placed and he had never told either the plaintiff or the husband
of the plaintiff that operation was the only remedy. He asserted that he had followed
conservative method of treatment and since the patient had responded to the
treatment, he felt that surgery was unnecessary. He also pointed out that at the time
of discharge the plaintiff was given specific instruction that if there was any
discomfort or illness, she should at once come and meet him. But after getting
discharged, the plaintiff never turned up and he had no reason to think that the
plaintiff was not cured. Denying that he was in any way negligent in treating the
plaintiff, he prayed for a dismissal of the suit.

4. On the above pleadings, necessary issues were raised by the trial court. The
evidence consists of the testimony of P.Ws.1 to 8 and marked E Xts.A1 to A19 from the
side of the plaintiff. The first defendant eXamined himself as D.W.1. EXts. X1 and X2
series were marked as third party e Xhibits. The trial court on an eXamination of the
medical records and on the basis of the evidence of the first defendant as D.W.1 came
to the conclusion that there was gross negligence on the part of the first defendant
and decreed the suit.

5. The first defendant carried the matter in appeal as A.S. 49 of 1998 before the
Sub Court, Ernakulam. The lower appellate court after an evaluation of the evidence
concurred with the trial court and dismissed the appeal.

6. Notice is seen to have been issued on the following questions of law:

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 Moni vs State Of Kerala on 4
"1) Were not the courts below wrong in awarding damages to the plaintiff
in the absence of any proof regarding negligent conduct from the part of
the 1st defendant resulting in any injury to the plaintiff?

2) Were not the courts below totally in error in completely ignoring the
evidence of
P.W.7 and EXt.X2 that the plaintiff had a long previous history of stomach
complaints

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 Moni vs State Of Kerala on 4
and she had undergone several months of continuous treatment at
Ernakulam Medical Centre for discharge of blood through mouth and
anus etc even after the surgery in July 1996 and the claimed cure and
yet finding the 1st defendant is guilty of negligence in not performing a
surgery on the plaintiff?

3. Were not the courts below totally in error in allowing Rs.6,000/- also as
compensation to the plaintiff which amount was admittedly e Xpended for the
treatments at Ernakulam Medical Centre unconnected with the surgery for
intussusception?

4. The Hon'ble Supreme Court of India in AIR 1969 Sc 132 held that a Doctor is
entitled to decide the course of treatment in an emergency. Were not the court below
wrong in refusing to follow this principle of law laid down by the ape X court and
finding the first defendant guilty of negligence in not operating on the plaintiff?

5. In as much as there is no proof of any injury being suffered by the plaintiff due to
the alleged negligence of the 1st defendant are not the judgments against the dictum
laid down in AIR 1936 PC 154?

6. Has not the courts below completely misread the pleadings and evidence in the case
and came to absurd conclusions?

7.Is the judgment and decree passed nearly an year after the final hearing valid in
law? Is not such judgment invalid and inoperative in view of the mandate under Order
20 of CPC?"

7.In fact the only question that arises for consideration is whether there
is sufficient proof to show that the first defendant was negligent in
treating the plaintiff.

8. Learned counsel appearing for the appellant pointed out that both the
courts below had not properly addressed themselves to the legal
principles involved in the case and have mechanically acted on the basis
of some records which too had not been properly considered. Learned
counsel pointed out that allegation regarding the taking of bribe etc.
remains unproved and there is nothing to indicate that the first
defendant was negligent in treating the plaintiff. In fact the evidence of
the doctors eXamined by the plaintiff herself would show that the first
defendant had resorted to the normal course of treatment which a doctor
would adopt in a circumstance under which the plaintiff was placed and
there is nothing to show that he had done any negligent act, which
aggravated the illness of the plaintiff. Learned counsel very fairly
conceded that there may be some inconsistencies in the evidence of

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 Moni vs State Of Kerala on 4
D.W.1 and the records maintained in the hospital. But that is insufficient
to show that the first defendant was negligent. The test to be applied is
whether the first defendant had eXercised the skill and eXpertise required
of him and not whether there were slight discrepancies in the evidence.
The proper approach is to ascertain whether a person with skill and
eXpertise of the first defendant would have normally resort to the mode of
treatment adopted by him in the case of the plaintiff. If the course of
treatment

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 Moni vs State Of Kerala on 4
chosen by the first defendant is an accepted mode of treatment, then the
mere fact that a better method could have been chosen is not a ground to
hold that the first defendant was negligent. An appreciation of the
evidence in the case, according to learned counsel, would clearly show
that the claim of the plaintiff that the first defendant had told her and her
husband that surgery was the only option cannot be true. Even going by
the evidence adduced by the plaintiff, it is clear that surgery is the last
option. It was also pointed out that eXcept for the ipsi diXit of the
plaintiff, there is nothing to show that she was not relieved of her illness
at the time of discharge from the General Hospital on 11.7.1995. Of
course, she was asked to continue taking medicines for a while.
According to learned counsel, there is absolute want of evidence to
show that the first defendant was in any way negligent in giving
treatment to the plaintiff.

9. In reply, learned counsel appearing for the respondents pointed out

that both the courts below meticulously analysed the evidence on record
and have come to the conclusion that the first defendant was negligent.
There is considerable inconsistency between the evidence of D.W.1 and
the official records maintained in the hospital and that is sufficient to
show that there was absolute want of care and caution on the part of the
first defendant in treating the plaintiff. Learned counsel went on to
contend that the nature of illness of the plaintiff was such that immediate
surgery had to be done and the first defendant, who is a person with
eXpertise in that field of medicine, deliberately abstained from conducting
surgery due to eXtraneous reasons. It is also contended that at the time of
discharge, the plaintiff was still suffering from her illness and she had
soon thereafter to go to another hospital where she underwent surgery.
First defendant was well aware of the fact that surgery was the only
remedy for the illness of the plaintiff, but he abstained from performing a
surgery due to eXtraneous considerations. It is also pointed out that both
the courts below were concurrently found that the first defendant has
been negligent. Being a question of fact, no interference is called for in
Second Appeal.

10.Merely because this court is sitting in Second Appeal, it does not mean
that this court is precluded from considering the evidence in the case to
see that the finding of the courts below suffers from gross illegality and
injustice. Learned counsel for the appellant took this court through the
entire evidence adduced in the case and contended that the finding of the
courts below that the first defendant was negligent cannot be sustained.

11. At the outset itself, it must be said that there is considerable force
in the above submission. That the plaintiff was admitted in the General

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 Moni vs State Of Kerala on 4
Hospital on 26.6.1995 is a matter not in dispute. It is also not in dispute
that the first defendant had attended to her on the same day. The
evidence discloses that the plaintiff had intussusception, which means
'the enfolding of one segment of the intestine within another'. Learned
counsel appearing for the respondent would contend that in such cases
the only remedy is to subject the patient to surgery and the course
adopted by the first

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 Moni vs State Of Kerala on 4
defendant cannot be appreciated. The above contention does not appear
to be correct.

12.One may in this regard refer to the evidence of the doctors e Xamined
by the plaintiff herself.

13.P.W.4 was a doctor in the Medical Centre Hospital at the relevant

time. He deposed that on 18.7.1995 the plaintiff was admitted in the
hospital. He said that on eXamining the X-Ray taken, he did not find any
problem with the large intestine. He then speaks about the various
modes of investigation adopted in such cases. He finally says that he
only eXamined the patient to ensure the physical fitness of the patient to
undergo surgery.

14. P.W.6 was a Gastro intestinal surgeon attached to Medical Centre

Hospital. He speaks about the operation conducted on the patient on
19.7.1995. He would say that she was suffering from Jejunial
intussusception. It is significant to notice that in chief eXamination itself
this witness had stated that it was only on opening of the abdomen it was
diagnosed as Jejunial intussusception. It is also equally important to
notice that even if the patient suffers from acute intussusception, it is not
necessary that surgery should be immediately conducted. The doctor
would specifically depose that surgery is not the only mode of treatment
in such cases. The patient can be asked not to take food including water
and put the patient on I.V. It is possible that there may be spontaneous
reduction. He speaks about other modes of treatment also. In cross
eXamination this witness has stated that Jejunial intussusception is a very
rare phenomenon. He would also depose that on conservative treatment if
the obstruction in the intestine gets removed, then surgery may not be
necessary at all. Even if the patient responds to the conservative method
of treatment, the patient will not be discharged immediately and kept
under observation for a while.

15.P.W.7 is yet another doctor attached to the Medical Centre Hospital.

He is a surgeon. He would depose that at the time of admission of the
patient they suspected intestinal intussusception. He also deposed that
the patient was having similar symptoms for the last 3 or 4 years. After
going through the records of the General Hospital, where the patient had
undergone treatment, they were not able to come to a definite conclusion
regarding her ailment. He however deposed that in the General Hospital
all required tests were done. He would say that immediately the patient
was put on conservative treatment. But they found no improvement on
the neXt day and therefore they decided to conduct a laproscopy. When
they did that, they detected a fairly large lump in the intestine. When they

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 Moni vs State Of Kerala on 4
found it, they could not reduce it though laproscopy, they decided to open
the abdomen. Only when they opened the abdomen and investigated they
found that the patient was suffering intussusception. After operation, the
patient recovered without much complication. Through this witness, the
records of the Medical Centre Hospital were marked.

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 Moni vs State Of Kerala on 4
16. What is significant about the evidence of this witness is that in chief
eXamination itself he says that as soon as intestinal intussusception is
detected, it is not necessary to go in for a surgery. The usual practice
followed is to adopt conservative method of treatment and if the
condition of the patient does not improve, then go in for operation. In
several cases on conservative treatment the patient's condition
improve, otherwise the patient would be subjected to surgery. Even if the
patient shows improvement, P.W.7 would say that the patient is kept
under observation for a few days.

17. P.W.8 is an independent witness, who speaks about having gone

along with P.W.2 to the doctor to give money. His evidence is not of much
relevance.

18. D.W.1 is the first defendant, who had attended to the patient when
she had gone to the General Hospital. At the relevant time he was
functioning as the Surgeon in the General Hospital. He speaks about the
treatment given to the patient by him and says that since the patient
showed considerable improvement, then put on conservative method of
treatment. He discharged the patient on 11.7.1995. He would also depose
that at the time of discharge, the patient was cautioned that in case of
any illness the patient should at once come and meet him. He would say
that after discharge, the patient had never returned to him. The witness
would maintain that if on adopting conservative method of treatment,
the condition of the patient does not improve, then alone surgery is
resorted to. In the case on hand, he would say that the plaintiff responded
to the conservative method of treatment and therefore he did not feel it
necessary to subject the patient to a surgery.

19. EXt.X1 is the file maintained in the General Hospital and EXt.X2 is the
file maintained in the Medical Centre Hospital.

20. Before going into the evidence relating to the negligence on the part
of the doctor, it will be useful to refer to the law on the point. The law of
negligence regarding professional has undergone considerable change in
recent times. The law of which was initially reluctant to attribute
negligence to professional men, has now developed will laid principles to
judge the standard of care and caution to be eXercised by a professional.
As far as medical profession is concerned, the law laid down in Bolam v.
Froern Hospital Management Committee ((1957) 2 All ER 118) is
considered to be the locus classica in the field. In the said decision it was
held as follows:

"The test is the standard of the ordinary skilled man eXercising and

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
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 e Xercises
the ordinary skill of an ordinary competent man e X ercising that
particular art. In the case of a medical man, negligence means failure
to act in accordance with the standards of reasonably competent medical
men at the time. There may be one or more perfectly proper standards,
and if he conforms with one of these proper standards, then he is not

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
negligent."

The above principle continues to be the law even now.

21. A doctor's liability to patient arises both under tort and in contract. The question
often arises as to what is the degree of care and caution that is eXpected of a doctor.
Lord Denning in The Discipline of Law at page 243 states as follows:

"You should only find him guilty of negligence when he falls short of the
standard of a reasonably skilful medical man, in short, when he is
deserving of censure -- for negligence in a medical man is deserving of
censure."

It is further stated:

"But so far as the law is concerned, it does not condemn the doctor when
he only does that which may a wise and good doctor so placed would do.
It only condemns him when he falls short of the accepted standards of a
great profession; in short, when he is deserving of censure."

22.Salmond and Heuston on the Law of Torts Eighteenth Edition at page 215 observes
thus:

"It is eXpected of such a professional man that he should show a fair,

reasonable and competent degree of skill; it is not required that he
should use the highest degree of skill, for there may be persons who have
higher education and greater advantages than he has, nor will he be held
to have guaranteed a cure. So a barrister is not eXpected to be right: it is
enough that he eXercises reasonable care. So a medical practitioner
should not be found negligent simply because one of the risks inherent in
an operation of the kind occurs, or because in a matter of opinion he
made an error of judgment, or because he has failed to warn the patient
of every risk involved in a proposed course of treatment. There is no rule
that a doctor must tell a patient what is the matter with him."

23.In the decision reported in Antonio Dias v. Frederick Augustus (AIR 1936 PC 154)
it was held as follows:

"Where a suit is filed for damages against a doctor, the onus of proof is
upon the plaintiff, and if he is to succeed he must demonstrate, beyond
reasonable doubt, that the defendant was negligent, and that his
negligence caused the injury of which the plaintiff complains."

24. In the decision reported in Poonam Verma v. Ashwin Patel (AIR 1996 SC 2111) it

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
was held as follows:

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 Moni vs State Of Kerala on 4
"The breach of duty may be occasioned either by not doing something
which a reasonable man, under a given set of circumstances would do, or,
by doing some act which a reasonable prudent man would not do."

25.According to Halsbury's Laws of England, 4th Edn., Vol.26 pp.17-18, the definition
of negligence is as under:

"22. Negligence.- Duties owed to patient. A person who holds himself out
as ready to give medical advice or treatment impliedly undertakes that
he is possessed of skill and knowledge for the purpose. Such a person,
whether he is 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 breach of any of these duties will support an action for
negligence by the patient."

26.In the decision reported in Jacob Mathew v. State of Punjab (2005(3) K.L.T.
965(SC), which has considered the matter in detail following the principle laid down in
Bolam's case held as follows:

"We sum up our conclusions as under:-

(1)Negligence is the breach of a duty caused by omission to do something

which a reasonable man guided by those considerations which ordinarily
regulate the conduct of human affairs would do, or doing something
which a prudent and reasonable man would not do. The definition of
negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by
Justice G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act or
omission amounting to negligence attributable to the person sued. The
essential components of negligence are three: `duty', `breach' and
`resulting damage'.

(2) Negligence in the conteXt of medical profession necessarily calls for a

treatment with a difference. To infer rashness or negligence on the part
of a professional, in particular a doctor, additional considerations
apply. A case of occupational negligence is different from one of
professional negligence. A simple lack of care, an error of judgment or an
accident, is not proof of negligence on the part of a medical professional.

So long as a doctor follows a practice acceptable to the medical profession of that day,
he cannot be held liable for negligence merely because a better alternative course or
method of treatment was also available or simply because a more skilled doctor would

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
not have chosen to follow or resort to that practice or procedure which the accused
followed. When it comes to the failure of taking precautions what has to be seen is
whether those precautions were taken which the ordinary e Xperience of men has
found to be sufficient; a failure to use special or e Xtraordinary precautions which
might have prevented the particular happening cannot be the standard for judging the
alleged negligence. So also, the standard of care, while assessing the practice as
adopted, is judged in the light of

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
knowledge available at the time of the incident, and not at the date of trial. Similarly,
when the charge of negligence arises out of failure to use some particular equipment,
the charge would fail if the equipment was not generally available at that particular
time (that is, the time of the incident) at which it is suggested it should have been
used.

(3) A professional may be held liable for negligence on one of the two findings: either
he was not possessed of the requisite skill which he professed to have possessed, or,
he did not eXercise, with reasonable competence in the given case, the skill which he
did possess. The standard to be applied for judging, whether the person charged has
been negligent or not, would be that of an ordinary competent person e X ercising
ordinary skill in that profession. It is not possible for every professional to possess
the highest level of eXpertise or skills in that branch which he practices. A highly
skilled professional may be possessed of better qualities, but that cannot be made the
basis or the yardstick for judging the performance of the professional proceeded
against on indictment of negligence. (4) The test for determining medical negligence
as laid down in Bolam's case [1957] 1
W.L.R. 582, 586 holds good in its applicability in India. (5) The jurisprudential
concept of negligence differs in civil and criminal law. What may be negligence in
civil law may not necessarily be negligence in criminal law. For negligence to amount
to an offence, the element of mens rea must be shown to eXist. For an act to amount to
criminal negligence, the degree of negligence should be much higher i.e. gross or of a
very high degree. Negligence which is neither gross nor of a higher degree may
provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word `gross' has not been used in S. 304A of IPC, yet it is settled that in
criminal law negligence or recklessness, to be so held, must be of such a high degree
as to be `gross'. The eXpression `rash or negligent act' as occurring in Section 304A
of the IPC has to be read as qualified by the word
`grossly'.

(7) To prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the given
facts and circumstances no medical professional in his ordinary senses and prudence
would have done or failed to do. The hazard taken by the accused doctor should be of
such a nature that the injury which resulted was most likely imminent. (8 Res ipsa
loquitur is only a rule of evidence and operates in the domain of civil law specially in
cases of torts and helps in determining the onus of proof in actions relating to
negligence. It cannot be pressed in service for determining per se the liability for
negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited
application in trial on a charge of criminal negligence."

27.In the decision reported in INS. Malhotra (Ms) v. Dr.A.Kriplani ((2009) 4 SCC
705) it was held as follows:

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
"Negligence in the conteXt of the medical profession necessarily calls for
a treatment with a difference. To infer rashness or negligence on the part
of a professional negligence. A simple lack of care, an error of judgment
or an accident, is not proof of negligence on the part of a
medicalrofessional. so long as a doctor follows apractice acceptble to
the medical profession of that day, he cannot be held liable for
negligence merely because a better alternative course or method of
treatment was

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
also available or simply because a more skilled doctor would not have
chosen to follow or resort to that practice orprocedure which the accused
followed. The classical statement of law in Bolam case, has been widely
accepted as decisive of the sandard of care required both of professional
men generally and medical practitioners in particular, and holds good in
its applicability in India. In tort, it is enough for the defendant to show
that the standard of care and the skill attained was that of the ordinary
competent medical practitioner e X ercising an ordinary degree of
professional skill. the fct that a defendant charged with negligence acted
in accord with the general and approved practice is enough to clear him
of the charge. It is not necessary for every professional to possess the
highest level of eXpertise in that branch which which he practises. Three
things are pertinent to be noted. Firstly, the standard of care, when
assessing the practce as adopted, is judged in the light of knowledge
available at the time of the incident, and not at the date of trial. Secondly,
when the charge of negligence arises out of failure touse some particular
equipment, the charge would fail if the equipment was not generally
available at that oint of time (that is, the time of the incident) on which it
is suggested as should have been used. Thirdly, when it comes to the
failure of taking precautions, what has to be seen is whether those
precautions were taken which the ordinary e Xperience of men has found
to be sufficient; a failure to use special or e Xtraordinary precautions
which might have prevented the particular happening cannot be the
standard for judging the alleged negligence.

In State of Punjab v. Shiv Rama three-Judge Bench of this court while

dealing with the case of medical negligence by the doctor in conducting
sterilization operations, reiterated and reaffirmed that unless negligence
of doctor is established, the primary liability cannot be fastened onthe
medical practitioner. In paragraph 6of hejudgment it is stated:

"6. Very recently, this Court has dealth with the issues ofmedical
negligence and laid down principles on which the liability of a medical
professional is determined generally and in the field of criminal law in
particular. Reference may be had to Jacob Mathew v. State of Punjab. The
Court has approved the test as laid downin Bolam v. Friern Hospital
Management committee popularly known as Bolam test, in its
applicability to India."

28. In the decision reported in Kusum Sharma v. Batra Hospital and Medical Research
Centre (AIR 2010 SC 1050) it was held as follows:

"It is a matter of common knowledge that after happening of some

unfortunate event, there is a marked tendency to look for a human

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
factor to blame for an untoward event, a tendency which is closely
linked with the desire to punish. things have gone wrong and, therefore,
somebody must be found to answer forit. A professinal deserves total
protection. The Indian Penal Code has taken care to ensure that people
who act in good faith should not be punished. Sections 88, 92 and 370 of
the Indian

Indian Kanoon - 1
 Moni vs State Of Kerala on 4
Penal code give adequate protection to the professional and particularly
medical professionals.

On scrutiny of the leading cases of medical negligence both in our

country and other countries especially United Kingdom, some basic
principles emerge in dealing with the cases of medical negligence. While
deciding whether the medical professional is guilty of medical negligence
following well known principles must be kept in view:-

I. Negligence is the breach of a duty e Xercised by omission to do

something which a reasonable man, guided by those considerations which
ordinarly regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The

negligence to be established bythe prosecution must be culpable or
gross and not the negligence merely based upon an error of judgment.

III. The medical professional is eXpected to bring a reasonable degree of

skill and knowledge and must eXercise a reasonable degree of care.
Neither the very highest nor a very low degree of care and competence
judged in the light of the particular circumstance of each case is what the
law requires.

IV. A medical practitiner would be liable only where his conduct fell below
that of the standards of a reasonably competent practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for genuine

difference of opinion and one professional doctor is clearly not negligent
merely because his conclusion differs from that of other professional
doctor.

VI. The medical professional is often called upon to adopt a procedure

which involves higher element of risk, but which he honestly believes as
providing greater chances of success for the patient rather than a
procedure involving lesser risk but higher chances of failure. Just because
a professional looking to the gravity of illness has taken higher element of
risk to redeem the patient out of his/her suffering which did not yield the
desired result may not amount to negligence.

VII. Negligence cannot be attributed to a doctor so long as he

performs his duties with 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

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
by him was acceptable to the medical profession.

VIII. It would not be conclusive to the efficiency ofthe medical profession

if no Doctor could administer medicine without a halter round his neck.

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
IX. It is our bounden duty and obligation of the civil society to ensure that
the medical professionals are not unnecessary harassed or humiliated so
that they can perform their professional duties without fear and
apprehension.

X. the medical practioners at times also have to be saved from such a

class of complainants who use criminal process as a tool for
pressurizing the medical professionals/hospitals particularly private
hositals or clinics for eXtracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against the medical
practitioners.

XI. The medical professionals are entitled to get protection so long as

they perform their duties with reasonable skill and competence and in
theinterest of the patients. The interest and welfare of the patients have
to be paramount for the medical professinals.:

29.In the decision reported in Malay Kumar Ganguly v. Sukumar Mukherjee (AIR
2010 SC 1162) it was held as follows:

"Charge of professional negligence on a medical person is a serious one

as it affects his professional status and reputation and as such the burden
of proof would be more onerous. A doctor cannot be held negligent only
because something has gone wrong. He also cannot be held liable for
mischane or misadventure or for an error of judgment in making a
choice when two options are available. The mistake of diagnosis is not
necessarily a negligent diagnosis is not necessarily a negligent diagnosis.

Even under the law of tort a medical practitioner can only be held liable
in respect of an erroneous diagnosis if his error is so palpably wrong as
to prove by itself that it was negligently arrived at or it was the product
of absence of reasonable skill and care on his part regard being held to
the ordinary level of skill in the profession. For fastrning criminal liability
very high degree of such negligence is required to be proved.

Death is the ultimate result of all serious ailments and the doctors are
there tosave the victims from such ailments. EXperience and eXpertise of
a doctor are utilized for the recovery. But it is not eXpected that in case of
all ailments the doctor can give guarantee of cure."

30. In the decision reported in Kusum Sharma v. Batra Hospital and Medical
Research Centre (2010) 3 SCC 480) it was held as follows:

"In a celebrated and oft cited judgment in Bolam v. Friern Hospital

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
Management Committee (Queen's Bench Division) McNair ,L.J. observed:

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
(i) a doctor is not negligent, if he is acting in accordance with a practice
accepted as proper by a reasonable body of medical men skilled in
that particular art, merelybecause there is a body of such opinion that
takes a contrary view.

"The direction that, where there are two different schools of medical
practice, both having recognition among practitioners, it is not negligent
for a practitioner to follow one in preference to the other accords also
with American law. Moreover, it seems that by American law a failure to
warn the patient of damages of treatment is not, of itself, negligence."

McNair, L.J. observed:

Before I turn to than, I must eXplain what in law we mean by 'negligence'.

In the ordinary case which does not involve any special skill, negligence
in law means this: some failure to do some act which a reasonable man in
the circumstances would do, or the doing of some act which a reasonable
man in the circumstances would do, or the doing of some act which a
reasonable man in the circumstances would not do; and if that failure or
the doing of that act results in injury, then there is a cause of action. How
do you test whether this act or failure is negligent? In an ordinary case it
is generally said, that you judge that by the action of the man in the
street. He is the ordinary man. In one case it has been said that you judge
it by the conduct of the man on the top of a clapham Omnibus. He is the
ordinaryman. But where you get a situation which involved the use of
some special skill or competence, then the test as to whether there has
been negligence or not is not the test of the man on the top of a Clapham
Omnibus, because he has not got this man eXercising and professing to
have that special skill. A man need not possess the highest eXpert skill at
the risk of being
found negligent. It is well-established law that it is sufficient if he
eXercises the ordinary skill of an ordinary competent man eXercising that
particular art.

In Chin Keow v. Govt. of Malaysia the Privy Council applied these words of
McNair,
L.J. in Bolam v. Friern Hospital Management Committee.

". where you get a situation which involves the use of some special
skill or
competence, then the test as to whether there has been negligence
ornot is not the test of the man on the top of a Clapham Omnibus,
because he has not got this special skill. The test is the standard of the
ordinary skilled man eXercising and professing to have that special skill."

Indian Kanoon - 2
 Moni vs State Of Kerala on 4

(See the decisions reported in Marghesh K. Parikh (minor) v. Dr. Mayur H.Mehta
((2011) 1 SCC 31) and V.N. Shrikhande (Dr.) v. Anita Sena Fernandes ((2011) 1 SCC
53)).

31.A perusal of the above decisions shows that attributing negligence to a medical
personnel is indeed a serious affair and as it affects his professional status and
reputation. In such cases, according to the various decisions, the burden of proof is
very high. Merely because the patient has

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
not been cured or something has gone wrong, the medical officer cannot be held liable
in tort. He may make an error in the choice of two options and every error in diagnosis
need not be a negligent one. His act has to be such that it is palpably wrong and
contrary to the medical standards and procedures usually adopted in such cases. A
high degree of negligence is usually insisted in such cases.

32.Before going further into the matter, it will be useful to understand what e Xactly
was the ailment of the plaintiff. At the time of admission in the General Hospital, the
first defendant did suspect a lump in the stomach. But the evidence given by the
witnesses eXamined by the plaintiff herself show that it is not easy to detect
intussusception. In fact the evidence of one of the surgeons would indicate that
they were able to confirm intussusception when they infact opened her abdomen.

33.Intussusception occurs when part of the bowel or intestine is wrapped around itself
producing a masslike object on the right side of the abdomen during palpation.
The major symptom of intussusception is vomiting and severe abdominal pain. There
may be nausea and diarrhea and occasionally the patient may develop fever. Once
intussusception is suspected, barium enema is resorted to. It is well accepted in
medical field that even when intussusception is detected, it is not necessary to subject
the patient to a surgery immediately. The usual procedure that is followed is
conservative method of treatment and then the medical officer waits to see if the
patient responds to such treatment. If the patient does respond to that treatment,
and intussusception gets reduced, then the patient is kept under observation for a
few days. The initial methods of treatment adopted are to stop oral feeding and to put
the patient on I.V. From the evidence available on record, it is almost clear that
surgery is the last option and not the first one. Of course, it also depends upon the
intensity of the disease. If intussusception ailment persists, the possibility of intestinal
gangrene, shock and death increases.

34.The courts below have mainly been influenced by the inconsistency in the evidence
of D.W.1 and the entries in EXt.X1 record. Certainly there are some conspicuous and
significant differences and inconsistencies. But the question is whether that by itself is
sufficient to fasten liability on the first defendant.

35.Here one has to notice the evidence of the first defendant. His definite stand was
that he had suspected intussusception and as the normal procedure he resorted to
conservative method of treatment. He would say that the patient responded to the
treatment and therefore he postponed the surgery. There is evidence in this case to
show that the patient responded to barium enema and also that she had taken oral
food few days after the admission. While the plaintiff would maintain that she
continued to vomit and had severe abdomen pain, the first defendant would say that
she showed marked improvement in her condition. What D.W.1 says can be found to
be true from the entries in EXt.X1. Of course there is some incongruity regarding the
directions given by the first defendant and the steps taken by the nursing staff. The

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
statement of the first defendant as D.W.1 that he did not care to look into that aspect
may not be commendable. But that is far from saying that he was negligent.

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
36.Learned counsel appearing for the respondents in this appeal stressed that the
moment when it was suspected that the patient was having intussusception, she
should have been subjected to surgery. The further contention is that if as a matter of
fact after admission on 26.6.1995 if the patient responded to the treatment neXt two
or three days, there was no necessity to retain her in the hospital. Emphasis was also
laid on the plaintiff undergoing further tests on 1st, 4th and 8th July, 1995. It was very
vehemently contended that if what D.W.1 says is true, it was unnecessary to conduct
these tests and that shows that the condition had never improved.

37. Learned counsel for the first respondent seems to have omitted to notice the
evidence furnished by witnesses from the side of the plaintiff. Before going into that
aspect, one fact may be noticed. After discharge from the General Hospital and before
going to the Medical Centre Hospital, the plaintiff had met a doctor attached to
P.S.Clinic, which is near her house. She was discharged from the General Hospital on
11.7.1995. D.W.1 categorically says that at the time of discharge she was cautioned
that if the symptoms return, she would meet him immediately. Nobody has a case that
she ever went back to General Hospital. On 13.7.1995 it seems that the plaintiff had
gone to the Clinic run by P.W.5. She would say that she had advised the plaintiff to
go to a well equipped hospital.
P.W.5 says that she gave an injunction to the patient and the patient went back to
her house. In cross eXamination, this witness would say that between 13.7.1995 and
18.7.1995 when the patient came back with the same complaint, according to her, the
patient was on normal diet.

38. Both the plaintiff and P.W.3, her husband, have a case that for two reasons the first
defendant was negligent in the treatment of the plaintiff. One is that P.W.3, the
husband of the plaintiff had complained to the Minister, who had visited the hospital,
about the nature of the building and also someone else had complained that the first
defendant was insisting bribes for treating the patients. P.Ws. 1 and 3 do say that they
had paid amounts to the first defendant, though the first defendant denies the same.
However, P.Ws.1 and 3 are gracious enough to say that the first defendant never
demanded any amount from them and the payment made by them were voluntary
payments.

39. The evidence of P.W.3 shows that even though he says that the condition of her
wife did not improve, he does say that his wife was able to attend to her routine affiars
during the time while she was in the hospital. It is also seen from his evidence that
oral food was taken after a few days under instructions from the medical staff. I am
not oblivious of his statement that even at the time of discharge, his wife was
suffering from the same illness. One may here also refer to the evidence of
P.W.1. P.W.1 says that when she developed pain in the abdomen again on 13.7.1995,
she had gone to the Clinic run by P.W.5. She would say that on the first occasion, i.e.,
on 13.7.1995 when she met P.W.5, she gave her an injunction, but she did not ask
P.W.1 to go to a better hospital. This is contrary to the evidence furnished by P.W.5,

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
who categorically says that when the patient came to her on 13.7.1995, she was
advised to go and take better treatment in a hospital which has more facilities. P.W.1
says that on 13.7.1995 and 18.7.1995 when she went to P.S. Clinic, she could not take
any food due to vomiting. One may here at once refer to the evidence of P.W.5, who
says that as per her diagnosis and as per the information gathered from the
patient, from 13.7.1995 to 18.7.995
P.W.1 was taking normal food. One may again refer to the evidence of P.W.4. He
would say that if acute intussusception is detected in a patient, normally two types of
treatments are adopted, they are conservative method and surgical method. He
would also depose that normally at first

Indian Kanoon - 2
 Moni vs State Of Kerala on 4
conservative method of treatment is adopted. P.W.6, whose evidence has already been
referred to, is a surgeon attended to the Medical Centre Hospital. He has categorically
stated in his deposition that the remedy for acute intussusception is not surgery alone.
The first mode of treatment is to instruct the patient not to take any food orally
including water. The doctor says that, that may bring about spontaneous reduction of
intussusception and he also says about the various methods of treatment before
surgery is resorted to. His evidence discloses that it is eXtremely difficult to diagnosis
intussusception. It is in this regard the evidence of P.W.7 needs to be appreciated. He
also says that on 18.7.1995 the plaintiff came to the hospital with a complaint of
vomiting and severe abdominal pain and they had suspected something wrong with
the intestine. He would say that the patient was put on conservative method of
treatment. Only when they found that she did not respond to that treatment, surgery
was decided to conduct upon. It is also significant to note that in chief eXamination
this witness would say that whey they conducted laproscopy, they found a lump in the
stomach, but only when they opened and probed into it, it was diagnosed as
intussusception.

40. Thus, an analysis of the evidence will clearly show that the mode of treatment
adopted by the first defendant initially is an accepted method even going by the
evidence furnished by the plaintiff herself. The contention of the learned counsel for
the respondent was that on the very same day of admission and on the very neXt day
of admission, patient was put on I.V, that is not the accepted mode of treatment in
case acute intussusception is initially diagnosed. The uniform opinion of all the
doctors eXamined is that, first the medical officer concerned resorts to conservative
method of treatment and only if the patient does not respond to the same and develop
further complications, surgery is resorted to. In other words, surgery is the last option
and not the first one as contended by the learned counsel for the first respondent.

41. One need not disbelieve the first defendant when he says that on 11.7.1995 when
the plaintiff was discharged, her condition had considerably improved. If as a matter
of fact what is claimed by the plaintiff and her husband P.W.3 is correct, certainly, it
would have been difficult for her to survive for 2 or more days in General Hospital. It
is to be noticed that she had in the General Hospital for 11 days. Therefore most of
the submissions made by P.Ws.1 and 3 can be taken only with a pinch of salt.

42. May be that the first defendant was slightly indifferent. But that by itself does not
lead to the conclusion that he was negligent. As noticed in several decisions, the
standard of proof is very high in case of medical negligence. The evidence does not
disclose that the treatment adopted by the first defendant in the case of the plaintiff
was not an accepted mode of treatment. In fact the evidence is to the contrary. The
initial treatment given to P.W.1, which is known as conservative method of treatment
is one usually resorted to in all such case. The evidence is clear to the effect that
option of surgery is the last resort when the patient does not show any
improvement after receiving conservative method of treatment and begins to

Indian Kanoon - 3
 Moni vs State Of Kerala on 4
develop more and more complications. Applying the above test and principle to the
facts of the case on hand, it therefore follows that the plaintiff has miserably failed to
establish that the first defendant was negligent in any manner.

43.At the time of hearing of the appeal, this court was given to understand that the
decree has been eXecuted and the plaintiff has realised the amount decreed by the
trial court and as confirmed by the

Indian Kanoon - 3
 Moni vs State Of Kerala on 4
appellate court. Considering the facts and circumstances, it is directed that in case the
plaintiff had realized the amount, it shall not be recovered from the plaintiff. But it is
held that the courts below were not justified in holding that the first defendant was
negligent in the treatment of the plaintiff.

In the result, this appeal is allowed, the judgments and decrees of the courts below
are set aside and the suit stands dismissed. There will be no order as to costs.

P. BHAVADASAN, JUDGE sb.

Indian Kanoon - 3
66 QUEEN' S BENC H DIVISION . [ 1 9 5 4 ]

C. A. but was entitled to refer as a " dispute," and which the tribunal
195 4 can properly hear and determine as such.
I am accordingly in agreement with my brethren, though for
E
° IN A somewhat different reasons, in thinking that this appeal should be
INDUSTRIAL allowed.
T Z I Appeal allowed.
Ex parte Leave to appeal to House of Lords refused.
TBCHNALOY
LD .
Solicitors: W. H. Thompson; Hardman, Phillips & Mann;
Solicitor, Ministry of Labour.
A. W. G.

1953 EO E v. MINISTE E OF HEALT H AND ANOTHER.

Oct. 19, 20,
21, 22, 23, W OOL L E Y v. SAME.
26, 27, 28,
29, 30, 31;
Nov. 2, 3, [1949 R. No. 3784.]
4
' 12" [1948 W. No. 3792.]
McNair J.
Negligence—Onus of proof—lies ipsa loquitur—Operation under control
C. A. of two persons—Hospital—Anaesthetist—Operations—Injection of
spinal anaesthetic—Ampoule cracked—Contamination by phenol—
Mar 22 23 Plaintiffs permanently paralysed — Liability of hospital for. acts
24, 25 ; of specialist anaesthetist — Mespondeat superior — Liability of
Ap. 8. anaesthetist.
Somervell Hospital—'■Negligence. Vicarious Liability. Causation. Damages—
Denning and Bemoteness. Negligence—Duty of care.
Two patients in hospital were operated on on the same day.
Both operations were of a minor character, and in each case nuper-
caine, a spinal' anaesthetic, was injected by means of a lumbar
puncture by a specialist anaesthetist assisted by the theatre staff of
the hospital. The nupercaine had been contained in sealed glass
ampoules which had been stored in a solution of phenol. After
the operations both patients developed severe symptoms of spastic
paraplegia, caused by phenol, which had percolated into the ampoules
through invisible cracks or molecular flaws, resulting in permanent
paralysis from the waist down. Actions for damages for personal
injuries were brought by both of the patients against the Minister
of Health as successor in title to the trustees of the hospital, and
against the anaesthetist. The anaesthetist carried on a private
anaesthetic practice but was under an obligation, with another
anaesthetist, to provide a regular service for the hospital.
The trial judge found for the defendants. He rejected the con
tentions of the plaintiffs that the doctrine res ipsa loquitur applied,
 6 7
2 Q.B. QUEEN'S BENCH DIVISION.

.and held that the hospital was not responsible for the acts of the 1953
anaesthetist, and that the plaintiffs' claims failed against both ~
defendants. On appeal:— „
Held, that the anaesthetist was the servant or agent of the MINISTER
hospital and the hospital were liable for his acts on the principle °F HEALTH.
of respondeat superior.
Gold v. Essex County Council [1942] 2 KB . 293; 58 T.L.R.
357; [1942] 2 All E.R. 237 and Cassidy v. Ministry'of Health
[1951] 2 K.B. 343; [1951] 1 T.L.R. 539; [1951] 1 All E.R. 574
applied.
Held, further, that applying the test of what was the standard
of medical knowledge in 1947 in respect to the detection of the
presence of the phenol in the ampoules, at the time of the operations,
neither the anaesthetist nor any member of the hospital.staff had
been guilty of negligence, and the appeals failed.
Decision of McNair J. affirmed.

ACTIONS.
In consolidated actions the plaintiffs', Cecil Henry Eoe, a farm
labourer, aged 46, and Albert Woolley, a labourer, aged 51,
claimed damages for personal injuries which, they suffered as the
result of the administration to them of a spinal anaesthetic on
October 13, 1947, at the Chesterfield and North Derbyshire Eoyal
Hospital. I n each case the surgical operation for which they were
anaesthetized was of a minor character, but in each case, owing,
as the trial judge found, to the contamination of the anaesthetic
by phenol, the patient developed a condition of spastic paraplegia,
which resulted in permanent paralysis from the waist down. The
contamination was found by the judge to have been caused by
the percolation of phenol (in which the glass ampoules containing
the anaesthetic were stored) through invisible cracks or molecular
flaws in the ampoules. In those circumstances the plaintiffs
claimed damages against the Minister of Health as successor in
title, under the National Health Service Act, 1946, and the
National Health Service (Appointed Day) Order, 1948, to the
trustees of the hospital, and also against Dr. J . Malcolm Graham,
who was responsible for the administration of the anaesthetic in
each case. The manufacturers of the anaesthetic, Ciba Labora tories,
Ld., were joined as third defendants, but during the hearing were
dismissed from the case.
Both actions came before McNair J., who on November 12,
1953, dismissed them and delivered the following judgment.
♦

MCNAI R J., having stated the facts, continued: The method

of anaesthesis employed was the well-known method of injecting
nupercaine into the patient' s theca by means of a lumbar puncture
68 QUEEN'S BENCH DIVISION. [1954 ]

1953 between the lumbar vertebrae. This method, at any rate in 1947
j{0B before the general development of the use of other relaxant drugs,
»• was widely used and had the advantage of securing by a simple
OF HEALTH, technique normally involving little distress to the patient a
complete relaxation in the field of the intended operation.
McNair J. ^
I desire to emphasize at the outset that no charge of negligence
was made based upon the adoption of this method of anaesthesis
for the two operations in question. At the hearing before me,
which lasted for eleven days, I had the advantage of hearing the
evidence given by a number of surgeons, neurologists, anaesthe
tists and pathologists of the highest professional standing, who,
while each desiring to assist the court without any reservation,
differed widely in many respects in their views of the cause of the
condition which developed in both plaintiffs following upon the
administration of the anaesthetic. I have had accordingly a more
than usually anxious task in attempting to reach a solution.
[His lordship described the anatomy of the spinal column,
stated the facts as to the development of the disease in each case,
reviewed the evidence and continued: ] In these circumstances
Mr Elwes as counsel for the plaintiffs, emphasizing the close
parallelism between the two medical histories and the fact that
injuries of this nature do not normally follow from spinal anaes
thetics properly administered, submits that the doctrine of res
ipsa loquitur applies (a) as against the hospital on the basis that
in law the hospital is responsible for the actions of Dr. Graham
as well as for the actions of the theatre' staff; (b) as against
Dr. Graham on the ground that he administered the anaesthetic
and had control of the theatre staff in all revelant respects.
The validity of this submission in my judgment depends on
determining (1) the extent of the obligation assumed by the
hospital towards patients received by the hospital; (2) the position
of Dr. Graham in relation to the hospital; and (3) the extent, if
any, of the application of the doctrine of res ipsa loquitur where
the offending object or operation is under the control of two
persons not in law responsible for the acts of each other. [His
Lordship then stated the facts with regard to the qualifications
and position of Dr. Graham * and continued : ]
I now turn to (1), the problem of the obligation assumed by
the hospital towards patients received for treatment. The two
most relevant authorities, both of which are binding upon me,
are the decisions of the Court of Appeal in Gold v. Essex„County

* See post, p. 69.

 6 9
2 Q.B. QUEEN'S BENCH DIVISION.

Council1 and Cassidy v. Ministry of Health.2 I take as my 1953

guide the passage in the judgment of Lord Greene M.E. in Gold's u0B
case 3 : " The question which presents itself in the present case «■
MlNISTPR
"may, therefore, be formulated as follows: when a patient OP HEALTH.
" seeking free advice and treatment such as that given to the
° McNair J.
" infant plaintiff knocks at the door of the defendant's hospital,
" what is he entitled to expect? . He will find an organization
" which comprises consulting physicians and surgeons, presum-
" ably also house physicians and surgeons, a staff of nurses,
" equipment for administering Grenz ray treatment and a radio-
" grapher, Mead, employed to give that treatment. So far as
" consulting physicians and surgeons are concerned, clearly the
" nature of their work and the relationship in which they stand
" to the defendants precludes the drawing of an inference that
" the defendants undertake responsibility for their negligent
" acts."
I also think it is clear that the judgments of Somervell and
Singleton L.JJ., who formed the majority on this point in
Cassidy's case,4 proceed on the same basis. No useful purpose
would be served by my expressing my own views upon the
judgment of Denning L.J. in the latter case, which states the
hospital's obligation in much wider terms, except to say that
there is in my judgment much force in the criticism directed by
Mr. Berryman against Denning L.J.'s reading of the decision in
Mersey Docks and Harbour Board v. Coggins and Griffiths (Liverr
pool) Ld.5 which apparently forms the basis of this judgment.
1 accordingly conclude (1) that so far as Dr. Graham was con
cerned, the hospital's obligation towards their patient was limited
to providing a competent anaesthetist, which obligation the
hospital undoubtedly fulfilled, and that the hospital was not
liable in law for his acts of negligence, if any; and that so far
as the theatre staff were concerned, the hospital assumed towards
their patients the vicarious responsibility of a master for his
servants. (2) It follows from what I have said above that in
my judgment the ■ position of Dr. Graham as a specialist
anaesthetist was comparable to that of a visiting surgeon or
physician for .whose acts the hospital does not assume responsi
bility in law. As to (3) the extent of the application of the
doctrine of res ipsa loquitur where the thing or operation is under
i [1942] 2 K.B. 293; 58 T.L.K. * [1942] 2 K.B. 293, 302.
357; [1942] 2 All E.E. 237. * [1951] 2 K.B. 343.
2 [1951] 2 K.B. 343; [1951] 1 » [1947] A.C. 1; 62 T.L.K. 533;
T.E.B. 539; [1951] 1 All E.E. 574. [1946] 2 All E.B. 345.
70 QUEEN'S BENCH DIVISION. [1954 J

1953 the control of two persons not in law responsible for each other—
Eo B I am unable to understand how it can be said that the maxim can
»• apply to either of such persons, since the res, if it speaks of
OP HEALTH negligence, does not speak of negligence against either indi-
—- vidually: see the passage in Lord Murray's speech in Garruthers
TWpN*ifr T

' v. Macgregor." In this connexion reference should also be made

to the words of Farwell L.J. in Hillyer v. St. Bartholomew's
Hospital,7 quoted by Somervell L.-J. in Cassidy's case.8
Furthermore, it was established on the evidence that, though
the anaesthetist is responsible for the choice of the anaesthetic,
for the giving of directions as to its preparation and for general
supervision of the activities of the theatre staff, he cannot
properly be regarded as responsible for their casual acts of
negligence.
Accordingly, in my judgment the ordinary onus rests upon
the plaintiff of proving negligence against the hospital or Dr.
Graham. It being conceded that the injection of nupercaine per
se was on the facts of this case not negligent, and it being clearly
established on the medical evidence that the injuries were not
caused (1) by an infective organism, as in Voller v. Portsmouth
Corporation,9 or (2) by traumatic injury to the spinal column by
the needle itself, and no other contaminant than phenol being
suggested, the first step in this proof of negligence must be to
satisfy the court that the injuries were in fact caused by the
injection of phenol.
None of the medical witnesses had consciously ever seen the
results of injecting phenol into the human theca, Accordingly,
the arguments for and against this view had necessarily to be
based largely on deductive reasoning from the observed effects of
phenol in other circumstances and the known effects of other
toxic substances on the contents of the theca itself. After the
most anxious consideration I have come to the conclusion that
the phenol theory is sufficiently established for it to form the
basis of a finding by the court that the injuries were in fact
caused by the injection of phenol with the nupercaine, and I so
find.
[His Lordship then considered the allegations of negligence
seriatim and held (1) that on the standard of medical knowledge
to be imputed to a competent anaesthetist in 1947 Dr. Graham
was not negligent in failing to appreciate the risk of phenol
• 1927 S.C. 816, 823. » [1951] 2 K.B. 343, 351,
' [1909] 2 K.B. 820, 827; 25 » (1947) 203 L.T.J. 264.
T.L.E. 762.
2 Q.B. QUEEN'S BENCH DIVISION. 71

percolating into the ampoules of nupercaine through " invisible 1953

cracks" or molecular flaws in the glass; (2) applying the test j^~
laid down by Lord Wright in Caswell v. Powell Duffryn Associated »•
Collieries Ld.,10 there were no positive proved facts from which op HEAI/TH
an inference as to the amount of phenol which percolated could
be drawn;1 (3) that on the evidence it would be impossible to c

infer that the percolation could have taken place through visible
cracks, and accordingly, if on proof of damage by phenol the
burden shifted to Dr. Graham to displace the implication of
negligence he had successfully discharged the burden by showing
that phenol in a significant quantity could . percolate into an
ampoule otherwise than by visible cracks, and remain undetected
without negligence on his part; and (4) Dr. Graham was not
negligent on the standard of a reasonably competent anaesthetist
in 1947 in failing i to adopt a colour technique which might
have disclosed the presence of a risk which he did not, in
common with many other competent anaesthetists, appreciate as
a possibility.]
As regards the hospital his Lordship held that the cracks in
the ampoules, if any, could not reasonably be attributed to
negligence on the part of the theatre staff. In the result he
dismissed both actions.
The plaintiffs appealed.
c
Richard Elwes Q.C. and John Hobson for the plaintiffs. - A-
The obligation assumed by the hospital authority towards its
1954
patients is to provide the necessary treatment: Gold v. ■ Essex T
County Council.1 In this case the hospital authority was under o.
a duty to provide both surgical and ancillary treatment. On the MINISTER
basis of Denning L.J.'s judgment in Cassidy v. Ministry of
Health 2 it is no defence for a hospital to allege that its failure
to carry but its obligations was due to the act of a person for
whom the hospital was not answerable in law on the basis of
respondeat superior. If that is putting it too high, then it is
submitted that this is a case of vicarious liability, the hospital
authority being responsible for negligent acts proved to have been
committed by its servants. On the basis of Somervell and
Singleton L.JJ.' s judgments in Cassidy's case,2 Dr. Graham
was a servant of the hospital authority. It is clear from the facts

i° [1940] A.C. 152, 169; 55 T.L.B. 2 [1951] 2 K.B. 343; [1951] 1

1004. T.L.B. 539; [1951] 1 All E.R. 574.
1 [1942] 2 K.B. 293; 58 T.L.R.
357; [1942] 2 All E.B. 237.
72
QUEEN'S BENCH DIVISION. [1954 ]
C A. of this case that he was employed under a contract of service and
1954 not under a contract for services. He was employed with Dr.
~ Pooler to provide a complete service of anaesthesia every day
„. throughout the year for both ordinary and emergency cases.
MINISTER The hospital obviously set out to provide for the day-to-day
' necessities of the hospital. There is no great difference between
engaging an anaesthetist to administer anaesthetics and employ
ing a nurse or a house surgeon. Therefore, whether the test is
that applied by Denning L.J. or that by Somervell and Singleton
L. JJ. the hospital still remains liable in law for his negligent acts.
Dr. Graham's duty was to administer anaesthetics with skill
and care, to choose a system of asepsis and to be responsible
generally for its working supervision. He also had a duty to
ensure that the system was safe. To succeed in their claims the
plaintiffs must prove that their injuries resulted from a breach
of one or more of these obligations.
Eeliance is placed on the maxim res ipsa loquitur, and it is
submitted that it arises on the facts of this case. The injuries
which the plaintiffs suffered do not normally result from a spinal
injection. The injuries were exceptionally grave. The injuries
happened on the same day and in the same way. No circum stances
could call more clearly for explanation. Ees ipsa loquitur
applies equally against both defendants. Assuming that Dr.
Graham was the servant of the hospital, the hospital was in control
of all relevant activities. Assuming that Dr. Graham was not a
servant, the maxim applies against him because he administered the
anaesthetic, was responsible for the asceptic technique and was,
therefore, in control of everything which could have caused the
injuries. The onus is on him to show that the injuries were not the
result of his negligence. The trial judge rejected the contention that
the maxim is applicable. He did so on the basis that it could
never be applicable when the matter in question was under the
control of two defendants who, as he found, were not mutually
responsible for each other.
The reported cases in which the maxim res ipsa loquitur has
been invoked are not of assistance except in so far as they
provide guidance to the court as to the circumstances in which
this presumption of fact will arise and the escape therefrom,
which is emphasized in Ballard v. North British Bailivay. 3 In
the past the courts have relied a good deal on the fact that when
a patient is lying unconscious in an operating theatre the doctors
3
1923 S.C.(H.L.) 43.
 7 3
2 Q.B. ' QUEEN'S BENCH DIVISION.

and nurses have been in command of the situation. If something U. A-

goes wrong they ought to explain why it has gone wrong, and the 1954
onus is on them to prove that the injury did not result from the ~-
negligent performance of some act or the negligent omission of „.
some act. In this case the onus lies equally on both defendants MINISTER
, . , . , OF HEALTH.
to prove that they have not been negligent. The judge found
m

that the injuries were caused by phenol, and that finding is nofc
now contested. It is, therefore, for those in control of the situa
tion to prove that phenol could get into the theca without
negligence on their part. If they do that the onus is thrown
back on the plaintiffs to prove negligence. If the circumstances
are such that it is open to the plaintiff to invoke the maxim, and
he calls evidence to support his case, the proper task of the court
is to consider whether or not the defendants, by their evidence,
have discharged the onus cast upon them.
[SOMERVELL L.J. I would have thought that the question
was one of the balance of probability. Have you any authority
on which you base your res ipsa loquitur submission?]
[Counsel cited Baker v. Market Harborough Industrial Co-
operative Society 4 and Mahon v. Osborne.5] In the latter case
MacKinnon and Goddard L.JJ. held that the maxim applied.
Scott L.tf. dissented, but, it is submitted, he did so because of
the uncertainty as to whether the surgeon or the nurse was negligent.
Montague Berryman Q.C., R. Marven Everett Q:C. and
J. S. Macaskie for the Minister of Health. The maxim res ipsa
loquitur does not apply in the present case. The judge heard
the evidence of medical men, chemists and scientists and the
findings which he came to are findings of fact. In the court
below it was contended that whatever else had done the mischief
it was not phenol, but in the result, although nobody was
prepared to be very dogmatic, the judge resolved, on the proba
bilities of the matter, that it was the phenol which had seeped
into the ampoules through molecular or invisible cracks. It
would not be right to invite this court to upset that finding.
The judge also found that there was no negligence proved against
the hospital staff, and it is submitted that it was the right
conclusion. Putting aside for a moment the legal position as
between the hospital and Dr. Graham, the whole system 6f
administering the anaesthetic had been devised by, and was
under the control of, the two anaesthetists. It was sought to say
4
[1953] 1 W.L.E. 1472. .« [1939] 2 K.B. 14.
74 QUEEN'S BENCH DIVISION. [1954]

C. A. in the court below that Dr. Graham was following rather blindly
3354 in the footsteps of Dr. Pooler, the senior anaesthetist. That is
the precise opposite to the truth. It is abundantly clear that
„ Dr. ■ Graham was throughout, in regard to tinting, and the way
MINISTER in which the system was earned out, exercising his own
OF HEALTH. . ,
judgment.
The hospital authority has carried out its obligations to the
plaintiff by providing the necessary treatment. • It is not respon
sible for the negligent acts of the anaesthetist. He is a con:
suiting anaesthetist and in exactly the same position in relation
to the hospital as a visiting surgeon or physician for whose negli
gent acts the hospital authority is not in law responsible: see
Gold v. Essex County Council, per Lord Greene M.E., 6 and
Cassidy v. Ministry of Health, per Somervell and Singleton
L.JJ. 7 In Cassidy's case 7 a hospital authority was held to be
liable for the negligent acts of a full-time medical officer and a
house surgeon, but the basis of the judgments of Somervell and
Singleton L.JJ. was that both doctors were employed under
contracts of service and were servants of the hospital authority.
Somervell L.X. pointed the distinction between a contract of
service and a contract for services. He referred in terms to con
sulting surgeons and physicians and took theosanie view as that
taken by Lord Greene M.E. in Gold's case.8 Denning L.J. con
sidered that the distinction between a contract of service and a
contract for services was irrelevant for the purposes of deter
mining the hospital authority's liability, holding that control over
the work was not the determining factor. He said that the
hospital was liable if the doctor or surgeon was employed and
paid by the hospital as the hospital had in its hands the ultimate
sanction for good conduct, the power of dismissal. It is sub
mitted that Denning L.J. based his judgment on Lord Simond's
speech in Mersey Docks and Harbour Board (Liverpool) Ld. v.
Coggins and Griffiths," where the House of Lords considered the
liability of the board for the negligent acts of .a crane driver and
held that the board, the employer, was liable even though the
crane driver, a skilled man, in carrying out his work, could say
" I take no orders from anybody." " Yet," said Lord Simonds,
" ultimately he would decline to carry it out in the appellants'
"way at his peril, for in their hands lay the only sanction, the
" power of dismissal." 10
e [1942] 2 K.B. 293, 302. » [1947] A.C. 1; 62 T.L.B. 533;
7 [1951] 2 K.B. 343. [1940] 2 All E.E. 345.
8 [1942] 2 K.B. 293, 302. i° [1947] A.C. 1, 20.
 7 5
2 Q.B. QUEEN'S BENCH DIVISION.

That clearly indicates that the employer had in fact an C.

A. ultimate right to control the work of the crane driver. It is sub- ig5i
mitted that the right to control is the true test of liability. — :
Applying that test in this case, the hospital authority has no 0-
right to control the work of Dr. Graham. He is entitled to MINISTER
choose any anaesthetics he' pleases and therefore the hospital
authority cannot be liable for his negligence. He, is not employed
under a contract of service, and on the basis of Somervell and
Singleton L.JJ' s judgment in Cassidy's case 11 he is not the
servant of the hospital authority. If that be right, the maxim
res ipsa loquitur cannot apply. Some of those involved in the
operation were servants of the hospital and some were not.
Therefore it cannot be asserted that the injury was caused .by
those who were the servants of the hospital. If the maxim
applies prima facie, the onus of proving negligence goes back on
the plaintiffs. If more than one theory of causation for the
injuries is put forward, one of which can reasonably afford an
explanation not involving negligence the onus of proving negli
gence is on the plaintiff: Ballard v. North British Railway, per
Lord Dunedin 12; The Kite.13
H. B. H. Hylton-Foster Q.C. and J. R. Cummings-Bruce for
Dr. Graham. It is not contended that if a deeper tinting of the
phenol had been used the contamination of the nupercaine would
not have been detected. But the case has to be decided by the
standard of medical knowledge in 1947, and the emphasis which
is now laid, in medical literature, on colouring only appeared
after this case had occurred. The judge was entitled to find,
and rightly found, that the system of immersion was not defec
tive' and that Dr. Graham had not been negligent.

Cur. adv. vult.

April 8. The following judgments were read.

SOMERVELL L.J. The two plaintiffs in these consolidated

actions were both anaesthetized by a spinal anaesthetic for minor
operations on October 13, 1947, at the Chesterfield and North
Derbyshire Eoyal Hospital, now represented by the first defen
dant, the Ministrv of Health. The results were tragic in that
both men were and have since remained paralysed from the waist
downwards. Each claims in negligence. The second defendant is
11
[1951] 2 K.B. 343. ™ [1933] P. 154; 49 TYL.K. 525.
12
1923 S.C.(H.L.) 43, 53.
76
QUEEN'S BENCH DIVISION. [1954 ]
0. A. the anaesthetist, and one of the issues was whether the principle
1954 respondeat superior was applicable as between the hospital and
T : him. The spinal anaesthetic used was nupercaine, manufactured
BOB •
p. and supplied by the third defendant, Ciba Laboratories. It was
MINISTER supplied in glass ampoules, one of which was used for each
OF *i "AN^TJI

patient. The suggestion that the nupercaine in the two ampoules

Somervell L.J. j n q Ues (;i on must have been defective or contaminated before
delivery to the hospital was, after investigation, abandoned at the
trial. The third defendant was, therefore, not concerned in the
substantive appeal.
The.judge found for the defendants and the plaintiffs appeal.
He found that the damage had been caused by phenol, which had
percolated into the ampoules from a solution in which the two
ampoules, with others, had been immersed. There was difference
of opinion among the experts, but this finding was accepted by
all counsel before us as the explanation, and the question, there
fore, is whether this percolation was caused by the negligence of
the defendants or either of them.
The ampoules were about 5 inches high, 1 inch in diameter,
narrowing towards the top to a neck about \ inch in diameter, and
swelling out slightly above the neck and then tapering. The
ampoule was opened by filing and then breaking at the neck.
Each contained 20 cc. of nupercaine. As delivered by the
makers the outside and label were not sterilized. They were to be
treated, as a notice on the box stated, as " frankly septic." The
needle of the syringe could be inserted through the neck, when
the ampoule had been opened, without coming in contact with the
outside of the ampoule. The ampoule would be held by the
sister and the syringe by the anaesthetist and there was a
possibility of accidental contact.
It is plain that this possibility exercised a good many anaes
thetists round about 1946. There was at the Chesterfield and
North Derbyshire Eoyal Hospital Dr. Pooler, the senior anaes thetist,
the second defendant, and a resident anaesthetist who was
clearly of a lesser status and who is not concerned in this case. In
1947 Dr. Pooler and Dr. Graham discussed the danger
.of sepsis as described above, and the importance of sterilizing
the ampoules. Dr. Pooler in fact started for his cases the method
which was used by Dr. Graham at the date of the operations on
the plaintiffs. That was to immerse the ampoules in a 1 in 20
solution of phenol for twenty minutes and then in a 1 in 40
solution for twelve or more hours.
On tne judge's finding a quantity of this phenol solution,
2 Q.B. QUEEN'S BENCH DIVISION. 77

sufficient to cause the paralysis, percolated through a crack in C.

A. each ampoule, sufficient nupercaine being left to anaesthetize each 1954
patient. There was no precise evidence as to the amount of
phenol solution necessary 'to cause the injuries, but probably „
about one-fifth of the volume of the nupercaine. Each plaintiff MINISTER
had an injection of 10 cc. If about one-fifth was phenol solution
one would expect anaesthesia and injury. Somervell L.J.
Dr. Graham appreciated the possibility of cracks and the
great danger of phenol solution if injected into the spine. He
examined each ampoule for cracks before taking its contents or
part of them into the syringe. The judge accepted his evidence
that he made such an examination carefully in these cases. " I
" did not believe for one moment that I could have missed a
" crack," he said. Was he negligent in so believing? The judge
deals with this matter in the following paragraph 1: " It is now
" clear that phenol can find its way into an ampoule of nuper-
" caine stored in a solution of phenol through cracks which are
" not detectable by the ordinary visual or tactile examination
" which takes place in an operating theatre—these cracks were
" referred to in the evidence as ' invisible cracks '—or through
" molecular flaws in the glass. The attention of the profession
" was first drawn to this risk in this country by the publication
" of Professor Macintosh's book on Lumbar Puncture and Spinal
" Anaesthesia in 1951. In 1947 the general run of competent
" anaesthetists would not appreciate this risk. Dr. Graham
" certainly did not appreciate this as a risk. I accordingly find
" that by the standard of knowledge to be imputed to competent
" anaesthetists in 1947, Dr. Graham was not negligent in failing
" to appreciate this risk and a fortiori the theatre staff were not
" negligent."
I accept this. Though Mr. Elwes did not accept these find
ings, his main attack on Dr. Graham was based on a different
matter. There was evidence that in some hospitals where the
immersion system was used the disinfecting liquid, whether a
phenol solution or surgical spirit, was stained a deep tint with
methylene blue or some other dye. Professor Macintosh described
the liquids he had seen as the colour of ink. This would make it
easier, of course, to detect percolation. It was a method used
by Ciba Laboratories and was known to analytical chemists. A
certain amount of confusion arose from the fact that the two
solutions of phenol in which the ampoules were immersed were

i [1954] 1 W.L.K. 128, 133.

?
8 QUEEN'S BENCH DIVISION. [1954 ]

C- A- coloured though not deeply. This was not done as a precaution

1954 against percolation. The 1 in 20 phenol solution was coloured a
~~ light blue and the 1 in 40 a light pink for general purposes of
„. identification and not as a precaution against cracked ampoules.
MraiSTEB j \ s a precaution for this latter purpose the colouring was, as
' Professor Macintosh said, quite inadequate. Dr. Graham gave
Somervell L.J. c e r fc a m answers which might have meant that he was relying on
colour to detect cracks. If so, it should have been deeper. I
agree with Mr. Hylton-Foster's submission that, taking his evi
dence as a whole, he was not. If, of course, he had seen that the
liquid in an ampoule was pink, he would at once have realized
there had been substantial percolation. He was, however, relying
on his visual inspection. Mr. Elwes submitted that once the
plaintiffs had shown that this precaution was taken in some other
hospitals the onus passed to Dr. Graham or the hospital to
explain why it was not adopted in the present case. If the onus
did so pass, I think that it was discharged.
Mr. Hylton-Foster conceded in the course of the trial and
before us that if there had been deep tinting it would probably
have disclosed any dangerous percolation. The judge, who had
many difficult matters to deal with, of which he has relieved us,
did not, I think, fully appreciate this concession. However, the
other reasons which he gives in my opinion justify his finding,
with which I agree, that Dr. Graham was not negligent. Dr.
Graham had never heard of deep tinting as a precaution. There
had been a reference in American publications to colouring, but
the only paper traced on " immersion " in this country made no
reference to deep tinting as an ingredient of the process. On
one occasion Dr. Graham found an ampoule which had been
cracked or broken at the top. I do not think this assists either
side. Mr. Hylton-Foster submitted, I think with force, that if
anything it confirmed Dr. Graham's view that cracks would be
visible. The actual method of immersion without deep tinting
was introduced and used in the first instance by his senior,
Dr. Pooler. Dr. Graliam was entitled to place some reliance on
that. It would obviously be wrong to infer negligence from the
fact only that it was used in some other hospitals. I felt at one
time that as Dr. Pooler had started the system it would have been
right that the hospital should have called him. They were,
however, submitting that he was not their servant, and on that
basis it was, I think, reasonable for them not to call him. If it
had been obvious or accepted that he was their " servant " for
2 Q.B . QUEEN' S BENC H DIVISION . 79

this purpose, it might well have been a matter for comment if C. A-

he had not been called. 1954
I t is well to consider the nature of the allegation here made ~
with regard to Dr. Graham' s interests as well as his duties. If ».
a man driving a motor-car is late for an urgent appointment he MINISTER
has at any rate a motive for taking a risk. What, however, is the
suggested act of negligence here? I t is a failure to instruct a S o m e r v e " L J ' sister
to put dye into a solution of phenol. I t imposes no burden
on the doctor except the speaking of a sentence. H e or Dr.
Pooler would have every motive for putting this minor burden on
the nursing staff if either had any idea that it might prevent
injury to his patients. There is, in my opinion, on the evidence
no justification for finding that Dr. Graham was negligent in
this matter.
The judge found that the hospital was not liable in law for
Dr. Graham' s acts of negligence, if any. I will set out the
passage in which the judge states the position of Dr. Pooler and
Dr. G r a h a m 2 : " In October, 1946, he was with Dr. Pooler, who
" had taken his diploma of anaesthesia some years earlier,
" appointed as a visiting anaesthetist to the hospital. H e and
" D r . Pooler between them.were under obligation to provide a
" regular anaesthetic service for the hospital, it being left to them
" to decide how to divide up the work. In fact, apart from
" emergencies, they worked at the hospital on alternate days.
" The hospital set aside a sum of money out of their funds
" derived from investments, contributions and donations for
" division among the whole of the medical and surgical staff,
" including visiting and consulting surgeons as the participants
" might decide. Dr. Graham participated in this fund but other-
" wise received no remuneration from the hospital. H e was at all
" times allowed to continue his private anaesthetic practice."
The judge referred to Gold v. Essex County Council3 and
Cassidy v. Ministry of Health.4, H e assimilated Dr. Pooler and
Dr. Graham to the '' consulting physicians and surgeons ' ' referred
to by Lord Greene in Gold's case. 5 The line suggested in that
case and in Cassidy's case 6 in the judgments of Singleton L.J .
and myself may not be a very satisfactory one, but I would have
regarded Dr. Pooler and Dr. Graham as part of the permanent
staff and, therefore, in the same position as the orthopaedic

2
[1954] 1 W.L.E. 131. * [1951] 2 K.B. 343; [1951] 1
3
[1942] 2 K.B. 293; 58 T.L.E. T.Ii.E. 539; [1951] 1 All E.B. 574.
357; [1942] 2 All E.E. 237. "« [1942] 2 K.B. 293, 302. ~
• [1951] 2 K.B. 343.
80 QUEEN'S BENCH DIVISION. ' [1954 ]

C A. surgeon in Cassidy's case. Like him they are, of course, qualified,

19 g4 skilled men, controlling as such their own methods. The
positions of surgeons and others under the National Health
„ Service Act, 1946, will have to be decided when it arises. The
MINISTER position of hospitals under that Act may or may not be different
' from when they were voluntary or municipal hospitals.
Somervell L.J. Having regard to my conclusion with regard to Dr. Graham,
the matter is relevant only on the alleged application of res ipsa
loquitur. The judge said that that principle could not apply
to a case where the operation was, as he held here, under the
control of two persons not in law responsible for each other.
Our attention was drawn to some observations in Mahon v.
Osborne 7 which suggest that this is too widely stated. As to the
maxim itself, I agree, with respect, with what was said by Lord
Eadcliffe in Barkway v. South Wales Transport8: " I find nothing
" more in that maxim than the rule of evidence, of which the
" essence is that an event which in the ordinary course of things
'' is more likely than not to have been caused by negligence is by
" itself evidence of negligence." In medical cases.the fact that
something has gone wrong is very often not in itself any evidence
of negligence. In surgical operations there are inevitably risks;
On the other hand, of course, in a case like this, there are points
where the onus may shift, where a judge or jury might infer negli
gence, particularly if available witnesses who could throw light on
what happened were not called. Having come to the conclusion
that the hospital were responsible for Dr. Graham, the judge's
reason (which is applicable in certain cases) for excluding the
maxim has not operated on my mind.
I will now turn to the second main submission by Mr, Elwes.
Invisible cracks are none the less cracks and would not have been
there if the ampoules had been carefully handled by the nursing
staff. Therefore, there must have been negligent handling. And,
of course, if the submission is to succeed, that negligent handling
must have caused the injury. A number of experiments were
conducted to try to crack ampoules in the way in which they
must have been cracked on the findings. It was, of course,
possible to break them if handled sufficiently roughly. It was
found very difficult to produce an invisible or difficultly visible
crack except by thermal methods. It would be a very speculative
basis on which to find some unidentified nurse negligent. I think,
however, making assumptions in the plaintiffs' favour, the
7
[1939] 2 K.B. 14; [1939] 1 All » [1950] A.C. 185; [1950] 1 All
E.E. 535. E-.B. 392, 403.
 2 Q.B. QUEEN'S BENCH DIVISION. 91

submission fails on causation. I will assume that a nurse knocked C. A.

two ampoules together as she was placing them in the basin and 1954
this '' rough ' ' handling caused the '' invisible '' cracks. I t would r
obviously be inadvertent and I will assume negligent. The duty „
as such not negligently to mishandle equipment would be a duty MINISTER
owed to the hospital. If an ampoule were dropped and broken
3omerve
there would clearly be no breach of any duty to a patient. In " L -J
the case I am assuming, having knocked the ampoules the natural
inference is that the nurse would look to see if they were cracked.
This is what every normal person who has dropped or knocked
something does. Is it broken? As the judge has found there
was no visible crack and the nursing staff had no reason to foresee
invisible cracks, the nurse would reasonably assume no harm
. had been done and would let the ampoule go forward. The duty
which the nursing staff owed to the plaintiffs was to take reason
able care to see that cracked or faulty ampoules did not reach
the operating theatre. That duty would not, in my opinion, be
broken in the circumstances and on the assumption as set out .
above.
For these reasons I would dismiss the appeal.

DENNING L.J. No one can be unmoved by the disaster which

has befallen these two unfortunate men. They were both working
men before they went into the Chesterfield Hospital in October,
1947. Both were insured contributors to the hospital, paying a
small sum each week, in return for which they were entitled to be
admitted for treatment when they were ill. Each of them was
operated on in the hospital for a minor trouble, one for something
wrong with a cartilage in his knee, the other for a hydrocele. The
operations were both on the same day, October 13, 1947. Each
of them was given a spinal anaesthetic by a visiting anaesthetist,
Dr. Graham. Each of them has in consequence been paralysed
from the waist down.
The judge has said that those facts do not speak for them
selves, but I think that they do. They certainly, call for an ex
planation. Each of these men is entitled to say to the hospital:
" While I was in your hands something has been done to me
" which has wrecked my life. Please explain how it has come
" to pass. " The reason why the judge took a different view was
because he thought that the hospital authorities could disclaim
responsibility for the anaesthetist, Dr. Gra ha m : and, as it might
be his fault and not theirs, the hospital authorities were not
called upon to give an explanation. I think that that reasoning is
2 Q.B. 1954. 6 (1)
82 QUEEN'S BENCH DIVISION. [1954 ]

C. A. wrong. In the first place, I think that the hospital authorities

■L954 are responsible for the whole of their staff, not only for the nurses
and doctors, but also for the anaesthetists and the surgeons. It
„ does not matter whether they are permanent or temporary,
MINISTER resident or visiting, whole-time or part-time. The hospital
01? H WAT TTT

' authorities are responsible for all of them. The reason is

Denning L.J. because, even if they are not servants, they are the agents of the
hospital to give the treatment. The only exception is the case
of consultants or anaesthetists selected and employed by the
patient himself. I went into the matter with some care in
Cassidy v. Ministry of Health 9 and I adhere to all I there said.
In the second place, I do not think that the hospital authorities
and Dr. Graham can both avoid giving an explanation by the
simple expedient of each throwing responsibility on to the other.
If an injured person shows that one or other or both of two persons
injured him, but cannot say which of them it was, then he is not
defeated altogether. He can call on each of them for an explana
tion : see Baker v. Market Harborough Industrial Co-operative
Society.10
I approach this case, therefore, on the footing that the hospital
authorities and Dr. Graham were called on to give an explanation
of what has happened. But I think that they have done so. They
have spared no trouble or expense to seek out the cause of the
disaster. The greatest specialists in the land were called to give
evidence. In the result, the judge has found that what happened
was this: In October, 1947, a spinal anaesthetic was in use at
the hospital called nupercaine. It was a liquid supplied by the
makers in closed glass ampoules. These were test tubes sealed
with glass. When the time came to use it, a nurse filed off the
glass top, the anaesthetist inserted his needle and drew off the
nupercaine, which he then injected into the spine of the patient.
It so happened that in this process there was some risk of the
needle becoming infected. The reason was because the outside
of the ampoule might become contaminated with a germ of some
kind: and the needle might touch it as the anaesthetist was fill ing
it. That this risk was a real one is shown by the fact that quite a
number of cases became complicated by some infection or other.
In order to avoid this risk, the senior anaesthetist at the
hospital, Dr. Pooler, decided to keep the ampoules in a jar of
disinfectant called phenol, which was a form of carbolic acid.
This disinfectant was made in two strengths. The stronger was
» [1951] 2 K.B. 343. " [1953] 1 W.L.E. 1472.
2 Q.B. QUEEN'S BENCH DIVISION. 83

tinted light blue and the weaker was tinted pale red. This was C.
A. so as to distinguish it from water.Following Dr. Pooler, the 1954
junior anaesthetist, Dr. Graham, thought that it was a good T
thing to disinfect the ampoules in this way and he adopted the „.
same system. By a great misfortune this new system of disinfect- MINISTEB
ing had in it a danger of which Dr. Pooler and Dr. Graham were
Denl ng LJ
quite unaware. The danger was this: the ampoules in the jar " -
might become cracked; the cracks might be so fine or so placed
that they could.not be detected by ordinary inspection, and the
carbolic disinfectant would then seep through the cracks into
the nupercaine, and no one would realize that it had taken place.
Thus the anaesthetist, who thought he was inserting pure nuper caine
into the spine of the patient, was in fact inserting nupercaine
mixed with carbolic acid. . That is the very thing which happened
in the case of these two men. Carbolic acid was inserted into their
spines and corroded all the nerves which con trolled the lower half
of their bodies
That is the explanation of the disaster, and the question is:
were any of the staff negligent? I pause to say that once the
accident is explained, no question of res ipsa loquitur arises.
The only question is whether on the facts as now ascertained any one
was negligent. Mr. Elwes said that the staff were negligent in
two respects: (1) in not colouring the phenol with a deep dye;
(2) in cracking the ampoules. I will taken them in order: (1)
The deep tinting. If the anaesthetists had foreseen that the
ampoules might get cracked with cracks that could not be
detected on inspection they would no doubt have dyed the phenol
a deep blue; and this would have exposed the contamination. But
I do not think that their failure to foresee this was negligence. It
is so easy to be wise after the event and to condemn as negligence
that which was only a misadventure. We ought always to be on
our guard against it, especially in cases against hospitals and
doctors. Medical science has conferred great benefits on man
kind, but these benefits are attended by considerable risks. Every
surgical operation is attended by risks. We cannot take the
benefits without taking the risks. Every advance in technique
is also attended by risks. Doctors, like the rest of us, have to
learn by experience; and experience often teaches in a hard
way. Something goes wrong and shows up a weakness, and then
it is put right. That is just what happened here. Dr. Graham
sought to escape the danger of infection by disinfecting the
ampoule. In escaping that known danger he unfortunately ran

2 Q.B. 1954. 6 (2)

84 QUEEN'S BENCH DIVISION. [1954]
O. A. into another danger. He did not know that there could be un-
1954 detectable cracks, but it was not negligent for Kim not to know
it at that time. We must not look at the 1947 accident with
„ 1954 spectacles. The judge acquitted Dr. Graham of negligence
MINISTER and we should uphold his decision.
on1 TTPAT TTT
(2) The cracks. In cracking the ampoules, there must, I
Penning L.J. feaTj n a v e been some carelessness by someone in the hospital.
The ampoules were quite strong and the sisters said that they
should not get cracked if proper care was used in handling them.
They must have been jolted in some way by someone. This
raises an interesting point of law. This carelessness was, in a
sense, one of the causes of the disaster; but the person who
jolted the ampoule cannot possibly have foreseen what dire eon-
sequences would follow. There were so many intervening
opportunities of inspection that she might reasonably think that
if the jolting caused a crack, it would be discovered long before
any harm came of it. As Somervell L.J. has pointed out, she
herself would probably'examine the ampoule for a crack, and see
ing none, would return it to the jar. The anaesthetist himself did
in fact examine it for cracks, and finding none, used it. The
trouble was that nobody realized that there might be a crack
which could not be detected on ordinary examination. What,
then, is the legal position?
It may be said that, by reason of the decision of this court
in In re Polemis l l the hospital authorities are liable for all the
consequences of the initial carelessness of the nurse; even though
the consequences could not reasonably have been foreseen. But
the decision in In re Polemis'11 is of very limited application. The
reason is because there are two preliminary questions to be
answered before it can come into play. The first question in every
case is whether there was a duty of care owed to the plaintiff;
and .the test of duty depends, without doubt, on what you should
foresee. There is no duty of care owed to a person when you
could not reasonably foresee that he might be injured by your
conduct: see Hay or Bourhill v. Young,12 Woods v. Duncan,13
per Lord Eussell and per Lord Porter.
The second question is whether the neglect of duty was a
cause '' of the injury in the proper sense of that term; and
causation, as well as duty, often depends on what you should
11
[1921] 3 K.B. 560; 37 T.L.E. « [1946] A.C. 401, 437; 62
T.L.B.
940. 283; [1946] 1 All E.E. 420n.
12
[1943] A.C. 92; [1942] 2 All
E.B. 396.
2 Q.B. QUEEN'S BENCH DIVISION. 85

foresee. The chain of causation is broken when there is an inter- C. A.

vening action which you could not reasonably be expected to fore- lgg4
see: see Woods v. Duncan,1* per Lord Simon, Lord Macmillan,
and Lord Simonds. It is even broken when there is an interven- „
ing omission which you could not reasonably expect. For MINISTER
instance, in cases based on Donoghue v. Stevenson" a manu-
facturer is not liable if he might reasonably contemplate that an Denning
L.J. intermediate examination would probably be made. It is only
when those two preliminary questions—duty and causation—are
answered in favour of the plaintiff that the third question, remote
ness of damage, comes into play.
Even then your ability to foresee the consequences may be
vital. It is decisive where there is intervening conduct by other
persons: see Stansbie v. Troman,1' Lewis v. Carmarthenshire
County Council.1'' It is only disregarded when the negligence is
the immediate or precipitating cause of the damage, as in In re
Polemis 18 and Thurogood v. Van'den Berghs & Jurgens Ld.19 In
all these cases you will find that the three questions, duty, causa
tion, and remoteness, run continually into one another. . It seems
to me that they are simply three different ways of looking at one
and the same problem. Starting with the proposition that a negli
gent person should be liable, within reason,.for the consequences
of his conduct, the extent of his liability is to be found by asking
the one question: Is the consequence fairly to be regarded as
within the risk created by the negligence? If so, the negligent
person is liable for it: but otherwise not.
Even when, the three questions are taken singly, they can
only be determined by applying common sense to the facts of
each particular case: see as to duty, King v. Phillips,20 as to
causation, Stapley v. Gypsum Mines Ld.,21 per Lord Reid; and as
to remoteness, Liesbosch, Dredger v. Edison S.S. (Owners),22 per
Lord Wright. Instead of asking three questions, I should have
thought that in many cases it would be simpler and better to ask
the one question: is the consequence within the risk ? And to
answer it by applying ordinary plain common sense. That is the
way in which Singleton L.J. and Hodson L.J. approached a
" [1946] A.C. 421, 431, 442. 20 [1953] 1 Q . B . 429, 437, 443;
15
[1932] A.C. 562; 48 T.L.E. 494. [1953] 1 All E.E. 617.
" [1948] 2 K.B. 48; 64 T.L.B. E.E. 617.
226; [1948] 1 All E.E. 599. 21 [1953] A.C. 663 at p. 681; [1953]
" [1953] 1 W . I J . E . 1439; [1953] 2 All E.E. 478.
2 All E.E. 1403. 22 [1933] A.C. 449 at p. 460; 49
»» [1921] 3 K.B. 560. T.L.R. 289.
" [1951] 2 K.B. 537; [1951] 1
T.L.R. 557; [1951] 1 All E.E.
682.
86 QUEEN'S BENCH DIVISION. [1954]
C; A. difficult problem in Jones v. Livox Quarries Ld.,23 and I should
jgg^ like to approach this problem in the same way.
Asking myself, therefore, what was the risk involved in care-
„ less handling of the ampoules, I answer by saying that there was
MINISTER such a probability of intervening examination as to limit the risk.
' The only consequence which could reasonably be anticipated was
Denning L.j. foe loss of a quantity of nupercaine, but not the paralysis of a
patient. The hospital authorities are therefore not liable for it.
When you stop to think of what happened in the present
case, you will realize that it was a most extraordinary chapter of
accidents. In some way the ampoules must have received a jolt,
perhaps while a nurse was putting them into the jar or while a
trolley was being moved along. The jolt cannot have been very
severe. It was not severe enough to break any of the ampoules
or even to crack them so far as anyone could see. But it was
just enough to produce an invisible crack. The crack was of a
kind which no one in any experiment has been able to reproduce
again. It was too fine to be seen, but it was enough to let in
sufficient phenol to corrode the nerves, whilst still leaving enough
nupercaine to anaesthetize the patient. And this very excep
tional crack occurred not in one ampoule only, but in two
ampoules used on -the self-same day in two successive operations;
and none of the other ampoules was damaged at all. This has
taught the doctors to be on their guard against invisible cracks.
Never again, it is to be hoped, will such a thing happen. After
this accident a leading textbook was published in 1951 which
contains the significant warning: " Never place ampoules of local
" anaesthetic solution in alcohol or spirit. This common practice
" is probably responsible for some of the cases of permanent
" paralysis reported after spinal analgesia." If the hospitals were
to continue the practice after this warning, they could not com
plain if they were found guilty of negligence. But the warning
had not been given at the time of this accident. Indeed, it was
the extraordinary accident to these two men which first disclosed
the danger. Nowadays it would be negligence not to realize the
danger, but it was not then.
One final word. These two men have suffered such terrible
consequences that there is a natural feeling that they should be
compensated. But we should be doing a disservice to the com munity
at large if we were to impose liability on hospitals and doctors for
everything that happens to go wrong. Doctors would be led to
think more of their own safety than of the good of their
23
[1952] 2 Q.B. 608 at pp. 613, 614, 618; [1952] 1 T.L.E. 1377.
2 Q.B. QUEEN'S BENCH DIVISION. 87

patients. Initiative would be stifled and confidence shaken. A C.

A. proper sense of proportion requires us to have regard to the con- ig5 4
ditions in which hospitals and doctors have to work. W,e must
insist on due care for the patient at every point, but we must „.
not condemn as negligence that which is only a misadventure.' I

MINISTER agree with my Lord that these appeals should be dismissed.

MORRIS L.J. Surgical operations were successively performed

on the two plaintiffs on October 13, 1947, at the Chesterfield and
North Derbyshire Royal Hospital, which was then a voluntary
hospital. In each case a spinal anaesthetic was administered by
the same anaesthetist, nupercaine being injected into the theca
by means of a puncture between lumbar vertebrae. In each
case the nupercaine was aspirated from a glass ampoule, a
separate ampoule being used (though the contents were not
wholly used) for each patient. The glass ampoules containing the
nupercaine, with others, had been kept in a glass jar which con
tained phenol in a 1 in 40 solution,: they had previously been
immersed for about 20 minutes in phenol in a 1 in 20 solution.
In the period following the operations each plaintiff developed a
condition of spastic paraplegia. After a full and careful hearing
the judge negatived the suggestion that the condition to which
the plaintiffs became reduced should be attributed to the nuper caine
itself. He came to the positive conclusion that the injuries were in
fact caused by the injection of phenol with the nuper caine. The
defendants did not seek to assume the burden of assailing on
appeal this finding of fact. No criticism of the operating surgeons
was at any time made in the proceedings. The Minister of
Health was sued as the successor of the trustees of the hospital:
the anaesthetist, Dr. Graham, was also sued. The manufacturers
of the nupercaine were later joined as defendants but before the
conclusion of the trial the case against them was dismissed with
the concurrence of counsel for the other parties.
The evidence adduced at the hearing showed that it was only
in very rare cases that any untoward consequence followed upon
spinal anaesthetic injection. In the nature of things the
plaintiffs could not know, nor be expected to know, exactly what
took place in preparation for and during their operations. When
they proved all that they were in a position to.prove they then
said " res ipsa loquitur." But this convenient and succinct for mula
possesses no magic qualities: nor has it any added virtue, other
than that of brevity, merely because it is expressed in
88
QUEEN'S BENCH DIVISION. [1954 ]

C- A. Latin. When used on behalf of a plaintiff it is generally a short

!954 way of saying : " I submit that the facts and circumstances which
" I have proved establish a prima facie case of negligence against
„ " the defendant." It must depend upon all the individual facts
MINISTER and the circumstances of the particular case whether this is so.
' There are certain happenings that do not normally occur in the
Morris L.J, absence of negligence, and upon proof of these a court will
probably hold that there is a case to answer. (For a valuable
discussion of this topic see an article by Dr. Ellis Lewis: 1951,
11 Cambridge Law Journal, p. 74.)
Where there are two or more defendants it may be that the
facts proved by a plaintiff are such as to establish a prima facie
case against each defendant. Thus in Mahon v. Osborne 24 Mac Kinnon
L.J. said: " Five persons were concerned in the operation " on
March 4 : Mr. Osborne (the surgeon), the anaesthetist, Nurse "
Ashburner (as chief, or theatre, nurse), Nurse Edmunds, and "
Nurse Callaghan. The plaintiff, having no means of knowing "
what happened in the theatre, was in a position of being able "
to rely on the maxim res ipsa loquitur so as to say that some "
one or more of these five must have been negligent, since the "
swab was beyond question left in the abdomen of the deceased. "
In fact, she sued Mr. Osborne, the surgeon, and Miss Ash- "
burner, the chief nurse, alleging that one or other of them, or "
perhaps both, must have been negligent. But it was for the "
plaintiff to establish her case against either or both."
Difficulties may arise, however, if a plaintiff only proves facts
from which the inference is that there may have been negligence
either in defendant A or in defendant B. So in the present case
it was said that unless Dr. Graham was the servant or agent of
the hospital the position at the close of the plaintiffs' cases was
that if a prima facie case of negligence was established it was
merely a case that pointed uncertainly against either Dr. Graham
or the hospital. I do not think that it is necessary to consider
whether, if Dr. Graham was not the servant or agent of the
hospital and if no evidence at all had been called on behalf of
the defendants, it could have been asserted that a prima facie
case was made out both against Dr. Graham and against the
hospital, for I have come to the conclusion that Dr. Graham
was the servant or agent of the hospital.
In Gold v. Essex County Council25 Lord Greene M.E. pointed
out that in cases of this nature the first task is to discover the

" [1939] 2 K.B. 14, 38. " [1942] 2 K.B. 293, 301.
2 Q.B. QUEEN'S BENCH DIVISION. 89

extent of the obligation assumed by the person whom it is sought C.

A. to be made liable. He added : " Once this is discovered, it follows ^54
" of necessity that the person accused of a breach of the obliga- :—
" tion cannot escape liability because he has employed another „
" person, whether a servant or agent, to discharge it on his MINISTER
01? H FiATiTTT
" behalf, and this is equally true whether or not the obligation
" involves the use of skill." In the present cases the judge held MorrisL.J.
that both plaintiffs were contributors for hospital and surgical
treatment under a contributory scheme run by the hospital, so
that they made some contributions which were received by the
hospital for their treatment. The exact details of the scheme
which the hospital had run were not before us and they might
not have added materially to the facts proved. While the
requisite standard of care does not vary according as to whether
treatment is gratuitous or on payment, the existence of arrange
ments entitling the plaintiffs to expect certain treatment might
be a relevant factor when considering the extent of the obligation
assumed by the hospital.
In his judgment in Gold v. Essex County Council Lord
Greene analysed the position of the various persons in the
" organization " of the hospital to which the plaintiff in that
case resorted for free advice and treatment. He said 2e : " The
" position of the nurses again . : . if the nature of their employ-
" ment, both as to its terms and as to the work performed, is
" what it usually is in such institutions I cannot myself see any
" sufficient ground for saying that the defendants do not under-
" take towards the patient the obligation of nursing him as dis-
" tinct from the obligation of providing a skilful nurse." This
passage conveniently demonstrates a contrast. A hospital might
assume the obligation of nursing: it might on the other hand
merely assume the obligation of providing a skilful nurse. But the
question as to what obligation a hospital has assumed becomes,
as it seems to me, ultimately a question of fact to be decided
having regard to the particular circumstances of each particular
case: the ascertainment of the fact may require in some cases
inference or deduction from proved or known facts. In the
present case we are concerned only with the position of Dr.
Graham in 1947 in this voluntary hospital.
The general position in regard to nurses would appear to be
reasonably uniform and clear. In Gold's case Lord Greene
said 2 7 : " Nursing, it appears to me, is just what the patient is

" [1942] 2 K.B. 302. « Ibid. '

90 QUEEN'S BENCH DIVISION. [1954]
C. A. " entitled to expect from the institution, and the relationship of
1954 ' ' ^ l e n u l 'ses to the institution supports the inference that they
" are engaged to nurse the patients. In the case of a nursing
°E " home conducted for profit, a patient would be surprised to be
MINISTER " told that the home does not undertake to nurse him. In the
OP BALTH, ,, c a g e Q j : a v o i u n t a r y hospital with the usual nursing staff his Morris
L.J. " j u s t expectation would surely be the same. The idea that
" in the case of a voluntary hospital the only obligation which
" the hospital undertakes to perform by its nursing staff is not
" the essential work of nursing but only so-called administrative
" work appears to me, with all respect to those who have thought
" otherwise, not merely unworkable in practice but contrary to
" the plain sense of the position." On the principles so clearly
enunciated the court in that case held that the hospital had
assumed the obligation of treating a patient who sought treatment
by Grenz rays and of giving the treatment by the hand of a
competent radiographer. That was the natural and reasonable
inference to be drawn from the way in which those running the
hospital conducted their affairs and from the nature of the engage
ment of the radiographer.
If a patient in 1947 entered a voluntary hospital for an
operation it might be that if the operation was to be performed
by a visiting surgeon the hospital would not undertake, so far
as concerned the actual surgery itself, to do more than to make
the necessary arrangements to secure the services of a skilled and
competent surgeon. The facts and features of each particular
case would require investigation. Bu t a hospital might in any
event have undertaken to provide all the necessary facilities and
equipment for the operation and the obligation of nursing and
also the obligation of anaesthetizing a patient for his operation.
The question in the present case is whether the hospital under
took these obligations. I n my judgment they did. There can
be no doubt that they undertook to nurse the plaintiffs and to
provide the necessary facilities and equipment for the operations.
I think they further undertook to anaesthetize the plaintiffs.
The arrangements made between the hospital and Dr. Pooler and
Dr. Graham, together with the arrangements by which a resident
anaesthetist was employed, had the result that the hospital pro
vided a constantly available anaesthetic service to cover all types
of cases.
I t is true that Dr. Pooler and Dr. Graham could arrange
between themselves as to when they would respectively be on
duty at the hospital: and each was free to do private work.
2 Q.B. QUEEN'S BENCH DIVISION. 91

But these facts do not negative the view, to which all the circum- C. A.
stances point, that the hospital was assuming the obligation of i g 5 4
anaesthetizing the plaintiffs for their operations. . I consider
B
that the anaesthetists were members of the "organization" of 0°
the hospital: they were members of the staff engaged by the MINISTER
hospital to do what the hospital itself was undertaking to do. 0F EAIiTH'
The work which Dr. Graham was employed by the hospital to do Morris L.J.
was work of a highly skilled and specialized nature, but this fact
does not avoid the application of the rule of " respondeat
'' superior.'' If Dr. Graham was negligent in doing his work I
consider that the hospital would be just as responsible as were
the defendants in Gold v. Essex County Council2S for the negli
gence of the radiographer or as were the defendants in Cassidy
v. Ministry of Health.29 I have approached the present case,
therefore, on the basis that the defendants would be liable if the
plaintiffs' injuries were caused by the negligence either of Dr.
Graham or by the negligence of someone on the staff who was
concerned with the operation or the preparation for it. On this
basis, if negligence could be established against one or more of
those for whom the hospital was responsible, it would not matter
if the plaintiffs could not point to the exact person or persons
who had been negligent. a

It was not suggested that Dr. Graham was negligent in using

nupercaine, nor that there was anything faulty in the manner of
his injecting. But it was said that the evidence pointed to the
fact that the quantity of phenol which must have found its way
into the nupercaine "had passed through cracks of dimensions
which would not have eluded a careful examiner. This view
depended in part upon an estimate as to the percentage of phenol
admixture which would be damaging and in part upon the evid
ence as to the results of experiments to ascertain the rate at
which phenol might percolate through cracks. But it seems
unlikely that Dr. Graham in two successive operations would
fail to detect cracks which could be observed or felt. The judge,
having seen and heard Dr. Graham, whose evidence he said
was given "i n a very careful and forthright manner," rejected
the suggestion that Dr. Graham had failed to detect cracks which
could have been seen. I do not think that this finding can be
disturbed, and, accordingly, the matter must be considered on
the footing that phenol had found its way into the ampoules
through cracks not ordinarily detectable. On this basis it is clear

28 29
[1942] 2 K.B. 293. [1951] 2 K.B. 343.
92 QUEEN'S BENCH DIVISION. [1954 ]

C. A. that if the phenol solution had been tinted with some vivid colour-
4
ig5 ing any escape of the solution into the ampoules would have been
readily apparent. This was at all times frankly conceded by
°B Mr. Hylton-Foster. The question arises whether Dr. Graham
MINISTER was negligent in not arranging for the deep-tinting of the phenol
OP ^EALTH. so i u tii orl i^g ph e n o i solution as used in the hospital was in
Morris L.J. fact coloured, though not vividly. This colouring was part of the
routine adopted in the hospital to denote and to identify phenol.
It was Dr." Pooler who first introduced in the hospital the
system of immersing the ampoules in phenol solution. Dr.
Graham considered the matter for some time before he followed
the lead given him by his senior and more experienced colleague,
upon whose opinion he greatly relied. "When Dr. Graham
adopted the new method he realized full well, as he unhesitatingly
admitted, that if a glass ampoule became cracked there could
be resultant percolation of phenol solution which would be a
" terribly serious danger." It was for that reason that he felt
it necessary, after changing over to the new method, to examine
carefully for cracks. But Dr. Graham was most emphatic in his
evidence that in 1947 he had no knowledge at all that there
might be in an ampoule some kind of a crack which was not
visible but wh\ch yet permitted percolation. He firmly believed
that there was no danger provided that there was no crack that
could be seen on proper inspection: he never conceived the idea
of a crack that he could not see. I read his evidence, when taken
in its entirety, as showing that he was not relying upon seeing
some discolouration as a warning that there had been percola
tion', but that he was convinced that danger could only arise if
there was a crack that could be seen and that such danger could
be fully averted by careful inspection.
It is now known that there could be cracks not ordinarily
detectable. But care has to be exercised to ensure that conduct
in 1947 is only judged in the light of knowledge which then was
or ought reasonably to have been possessed. In this connexion
the then-existing state of medical literature must be had in mind.
The question arises whether Dr. Graham was negligent in not
adopting some different technique. I cannot think that he was.
I think that a consideration of the evidence in the case negatives
the view that Dr. Graham was negligent and I see no reason to
differ from the conclusions which were reached on this part of the
case by the judge. But it is further said that there must
have been negligent mishandling of the ampoules on the part of
some member or members of the staff of the hospital. On behalf
2 Q.B. QUEEN'S BENCH DIVISION. 93

c
of the plaintiffs it was urged that the ampoules must have - A-
arrived intact and in good order at the hospital and must have
1954
been carelessly handled at a later stage when they were being
made ready and available for operative use. There was much •v
evidence which supported the contention that ampoules could
MINISTEB only have been
damaged if they were mishandled. Even so, it
is problematical as to when and where and under what circum- Morris
L.J. stances these two ampoules became damaged. But as
the case
now stands an acceptance of the finding of fact of the
judge that Dr. Graham carefully examined the ampoules used
and that there were no cracks which would by such examination
have been revealed, involves that the offending cracks were not
detectable ones.
If the view is correct that an anaesthetist in 1947 was not
negligent in not knowing of the risk of seepage through what have
been called " invisible cracks " it follows, I think, that members
of the theatre staff could not be expected to know of any such
risk. In his speech in Bolton v. Stone 30 Lord Porter said: " It
" is not enough that the event should be such as can reasonably
" be foreseen: the further result that injury is likely to follow
" must also be such as a reasonable man would contemplate,
" before he can be convicted of actionable negligence." If some
member of the staff had in fact mishandled the ampoules in
question then the position was either that damage was not seen
after an actual inspection or that an inspection would have been
unavailing: since no detectable damage to them was caused there
was no reason to foresee that there was any risk in leaving such
ampoules amongst those from which an anaesthetist would select
and no reason to contemplate that any injury would be likely to
follow. Though there must be abiding sympathy with the two
plaintiffs in their grievous and distressing misfortunes, I consider
that the judgment of the judge was correct

Appeals dismissed.
Leave to appeal to House of Lords refused.

Solicitors: Gibson & Weldon for John Whittle, Robinson dt

Bailey, Manchester; Berrymans; Hempsons; Swepstones.

A. W. G.
so [1951] A.C. 850, 858; [1951] 1T.L.R. 977; [1951] 1 All E.E. 1078.
2 Q.B. 1954. 7
 MANU/CF/0136/1997
Equivalent/Neutral Citation: 1997(2)C.P.C.405, I(1998)CPJ110(NC), 1997 (2) CPR 144

IN THE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
First Appeal No. 286 of 1994
Decided On: 30.05.1997
Sethuraman Subramaniam Iyer Vs. Triveni Nursing Home and Ors.
Hon'ble Judges/Coram:
V. Balakrishna Eradi, J. (President), S.S. Chadha, Dr. R. Thamarajakshi and C.L.
Chaudhry, JJ. (Members)
Counsels:
For Appellant/Petitioner/Plaintiff: Party-in-Person
For Respondents/Defendant: I.D. Sood, Authorised Representative Advocate
ORDER
C.L. Chaudhry, J. (Member)
1 . This appeal has arisen out of the order dated 9.12.1993 passed by the Consumer
Disputes Redressal Commission, Maharashtra. The facts which are necessary for the
determination of the controversy between the parties may be summarised as under. The
complainant's wife Shanta was suffering from repeated attacks of Sinusitis and for that
treatment she approached Dr. S.C. Rao opposite party No. 2 for permanent cure. Dr. Rao
advised her to admit herself in the Triveni Nursing Home i.e. opposite party No. 1
where Dr. Rao was acting as Consultant and ENT Specialist. Dr. Rao had diagnosed a
condition of deviated Nasal Septum and advised Shanta that minor operation would cure
the ailment permanently. The complainant enquired from Dr. Rao about the expenses
and risk. She was assured by Dr. Rao that there was no risk and the mortality rate was
nil. Shanta agreed to go in for operation. The operation was fixed for 28th December,
1990. Shanta was admitted about 5.30 a.m. at the Nursing Home of the opposite party
No. 1. Dr. Rao arrived at 5.30 a.m. and advised the staff to make the necessary
preparation for the operation of Shanta. Shanta was taken to the operation theatre
around 6.10 a.m. while the complainant waited outside. At about 6.20 a.m. Dr. Rao
called the complainant in the operation theatre and enquired whether Shanta had any
previous complaints of 'Fits', to which the complainant replied in the negative.
According to the complainant he was asked to sit beside his wife Dr. Rao started making
enquiries from his staff for the medicines to be administered to Shanta which he could
not locate. Thereafter, Shanta was given an injection of calmpose. Later on Dr. Sood
was seen massaging manually Shanta's heart to which she did not respond. It was
further alleged that search was going on to locate life saving drug in the operation
theatre which was not located by Dr. Rao. Dr. Parulekar was also called on the
telephone and on his arrival oxygen was administered to Shanta. Dr. Raghavan was
called on the telephone who took over from Dr. Sood and himself started cardiac
massage. The complainant was informed by Dr. Raghavan that his wife had suffered
from a massive heart attack and she was in a very serious condition. According to the
complainant that despite serious condition of Shanta, Cardiologist was not consulted

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and neither he was called for. Thereafter, Shanta died. The complainant attributed
medical negligence in the service of Dr. Rao and claimed Rs. 10.00 lakhs as
compensation.
2. Opposite party No. 1 filed its written version through Dr. Sood one of its partner. It
was pleaded that no medical services were rendered for consideration to the deceased.
However, it was admitted that Dr. Sood was a General Surgeon and ENT consultant and
denied that there was any negligence on the part of the opposite party No. 1 Dr. Rao,
opposite party No. 1 filed separate written version and denied the complainant's
allegation made in the complaint.
3. In support of his allegation the complainant placed on record copy of the operation
note of Smt. Shanta maintained by the Nursing Home, copy of the correspondence
exchanged between the parties, the post-mortem report his pathological report in
respect of Shanta and a copy of the FIR lodged with the Police. On the pleadings and
the material placed on record by the parties; the State Commission formulated the
following points for determination:
(1) Whether the complaint is maintainable?
(2) Whether there has been negligence in the medical service of opposite party
Nos. 1 & 2 ?
(3) Whether the complainant is entitled to claim any compensation ?
4. The State Commission returned the finding that there was no negligence in rendering
services by opposite party No. 2. As a result of the finding on the issue No. 2 the
complaint was dismissed.
5 . Feeling aggrieved by the order of the State Commission, the complainant has
approached this Commission by way of this appeal.
6. We have heard the matter and perused the record. The appellant appeared in person
while the respondent No. 1 was represented by Dr. I.D. Sood and Mr. Raja B. Thakre,
Advocate appeared for respondent No. 2. The appellant raised a number of points. It
was contended by the appellant that the State Commission accepted that the respondent
No. 2 had the required professional skill to administer the anaesthesia without the
presence of a qualified anaesthetist, the State Commission had not applied its mind to
the fact that the respondent No. 2 was unable to cope up with the emergency caused as
a result of the anaesthesia administered by him. The resultant anaphylactic shock,
evident by the convulsions suffered by appellant's deceased wife, required a short
acting antidote and the best would have been pentothal. Instead, the respondent No. 2
displayed total ignorance as a medical practitioner, and for deficiency in storing proper
drugs by administering Calmpose, a slow acting sedative. The State Commission failed
to consider that though medical practitioner may be well aware of the requirement and
sufficiency of anaesthesia, which they administered themselves without an anaesthetist,
every medical practitioner such as the respondent No. 2 was expected to encounter and
should be able to cope with an emergency situation inherent with administration of
anesthesia. The deceased herself had, in a prior consultation a couple of months
preceding the operation, informed the respondent No. 2 that she was free from ailments
such as diabetes, fits, allergies to food and drugs, except the history of hypertension.
The State Commission failed to appreciate that the respondent No. 2 and his assistants
were in a state of a panic when unable to treat the unconscious lifeless wife of the
complainant for anaphylactic shock. The State Commission did not take into

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consideration an important fact that the respondent No. 2 wasted precious minutes by
questioning the appellant who was called in at 6.20 a.m. into the operation theatre
where he found his wife unconscious and did not respond when he called out her name
thrice. The State Commission relied upon the operational notes placed on record by
respondent No. 2. The State Commission had given no importance to the fact that the
medical notes relied upon, were in fact written after the appellant's wife had
expired and after the police were informed about the death. The State Commission
did not appreciate the post-mortem report in its right perspective. The State
Commission erred in ruling out any deficiency in service on the part of respondent No.
2 in the treatment of appellant's wife for anaphylactic shock which risk was inherent in
the administration of xylocaine anaesthesia and with which emergency the
respondent No. 2 could not cope either due to lack of professional skill, negligence or
absence of life saving drugs. On the other hand, on behalf of the respondents it was
canvassed that there was no negligence on the part of the respondents in rendering
the services. The patient was treated, by keeping the history of the patient, the
diagnosis in the relevant circumstances and the benefit of the patient, in mind.
We have given our careful thought to the relevant contentions of the parties. The
State Commission after perusal of the entire record and taking into consideration the
relevant factors, came to the conclusion that there was no negligence on the part of
the respondents in rendering service. The State Commission in support of its
finding elaborately discussed the material placed on record by the parties. We find
that the respondent No. 2 had taken all necessary precautions and effective
measures to save Shanta. She requisitioned services of Dr. Sood , Dr. Parulekar, Dr.
Parikh and Dr. Raghavan. All of them made frantic efforts to save the deceased. Dr.
Sood, Dr. Raghavan and Dr. Parulekar had filed affidavits wherein they categorically
denied that there was any negligence in rendering services by the opposite party No.
2. Dr. Sood was a Consulting Surgeon in ENT. Dr. Raghavan was Anaesthetist, Dr.
Parekh another Anaesthetist and Dr. Madhekar was a General Physician. It is also in
evidence that all the four Doctors had arrived before the death of Shanta. From the
record it also appears that the necessary medicines were administered to Shanta
and other possible efforts were made to revive her. Shanta developed convulsion
and lost her B.P. and pulse before commencement of the operation. It is also in
evidence that Shanta was taken into operation theatre and she was given 4%
xylocaine, 5 ml. injection. Prior to the administration of that injection, test dose of
0.25 c with 2% xylocaine was given on the right forearm of Shanta. The State
Commission had rightly relied upon the operation notes. Nothing had been
brought on the record to show that the operation notes were fabricated and were
prepared after the death of Shanta. In these circumstances, the State Commission was
justified in relying upon those notes. Five Doctors have filed their affidavits in support
of the case of opposite party No. 2.
It appears from the record that the complainant did not requisition the services of any
expert to support his allegations. In the absence of any expert evidence on behalf of the
complainant, the State Commission was right in relying upon the affidavits filed by the
four doctors on behalf of the respondents. In our view, the State Commission was right in
holding that there was no negligence on the part of the respondents. The State
Commission rightly analysed and appreciated the materials placed on the record. The
State Commission arrived at the finding after taking into consideration the totality of the
circumstances. No case is made out by the appellant for interference with the order
passed by the State Commission.
As a result of above discussion, it follows that the appeal is devoid of merit and it
deserves dismissal. We order accordingly. We make no order as to costs.

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 © Manupatra Information Solutions Pvt. Ltd.

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 State Of Haryana & Ors vs Raj Rani on 29

State Of Haryana & Ors vs Raj Rani on 29 August, 2005

Equivalent citations: AIR 2005 SUPREME COURT 3279, 2005 AIR SCW 4126,
(2005) 2 CLR 524 (SC), (2005) 4 CTC 703 (SC), (2005) 4 JCR 227 (SC), (2005) 6
BOM CR 927, (2005) 35 ALLINDCAS 129 (SC), 2005 (2) UJ (SC) 1420, 2005 (4)
CTC 703, 2005 (7) SCALE 1, (2005) 8 JT 56 (SC), 2005 (2) CLR 524, 2005 (4)
BOM CR 927, 2005 (7) SCC 22, 2005 (4) RECCIVR 169.1, 2005 (6) SLT 527,
2005 (35) ALLINDCAS 129, 2005 (8) SRJ 364, (2005) 4 ALLCRILR 466, (2005) 2
CURLJ(CCR) 530, (2005) 3 PUN LR 795, (2005) 3 ACC 811, (2005) 1 ACJ 2116,
(2005) 4 MAD LJ 131, (2006) 1 MAD LW 580, (2005) 4 PAT LJR 69, (2005) 6
SUPREME 56, (2005) 4 RECCIVR 169(1), (2005) 61 ALL LR 463, (2006) 1 CAL
LJ 25, (2006) 1 CIVILCOURTC 136, (2005) 4 RECCRIR 175, (2005) 6 SCJ 546,
(2005) 4 ICC 751, (2005) 7 SCALE 1, (2005) 2 WLC(SC)CVL 542, (2005) 4 JLJR
38, (2005) 4 CPJ 28

Author: R.C. Lahoti

Bench: R.C. Lahoti, G.P. Mathur, P.K. Balasubramanyan

CASE NO.:
Appeal (civil) 2743 of 2002

PETITIONER:
State of Haryana & Ors.

RESPONDENT:
Raj Rani

DATE OF JUDGMENT:

29/08/2005 BENCH:
CJI R.C. Lahoti,G.P. Mathur & P.K.

Balasubramanyan JUDGMENT:

J U D G M E N T With C.A. No. 1359 of 2005 C.A. No. 5316 of 2005 (@ SLP (c) No.
3106/2004) C.A.
No. 5312 of 2003 C.A. No. 6272 of 2003 C.A. No. 6417 of 2002 R.C. Lahoti, CJI
Leave granted in SLP (C) No. 3106/2004.

In all these appeals, it is not necessary to notice the facts of individual cases. It would
suffice to state that in all these cases, the plaintiff, a woman, had undergone a
sterilization operation performed by a surgeon in the employment of the State of
Haryana. Subsequent to the performance of the surgery, the woman became

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 State Of Haryana & Ors vs Raj Rani on 29
pregnant and delivered a child. Suit was filed against the doctor who had

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 State Of Haryana & Ors vs Raj Rani on 29
performed the surgery, claiming compensation based on the cause of action of
'unwanted pregnancy' and 'unwanted child', attributable to the failure of the surgery.
State of Haryana was impleaded, claiming decree against it on the principle of
vicarious liability. The suits have been decreed and such decrees have been put in
issue by filing these appeals by special leave.

A 3-Judge Bench of this Court has held in State of Punjab v. Shiv Ram & Ors. (C.A.
5128 of 2002 decided on August 25, 2005) that child birth in spite of a sterilization
operation can occur due to negligence of the doctor in performance of the operation,
or due to certain natural causes such as spontaneous recanalisation. The doctor can
be held liable only in cases where the failure of the operation is attributable to his
negligence and not otherwise. Several teXtbooks on medical negligence have
recognized the percentage of failure of the sterilization operation due to natural
causes to be varying between 0.3% to 7% depending on the techniques or method
chosen for performing the surgery out of the several prevalent and acceptable ones in
medical science. The fallopian tubes which are cut and sealed may reunite and the
woman may conceive though the surgery was performed by a proficient doctor
successfully by adopting a technique recognized by medical science. Thus, the
pregnancy can be for reasons de hors any negligence of the surgeon. In the absence
of proof of negligence, the surgeon cannot be held liable to pay compensation. Then
the question of the State being held vicariously liable also would not arise. The
decrees cannot, therefore, be upheld.

However, the learned counsel for the appellant-State stated at the very outset that
the plaintiffs in all these cases are poor persons and the State was not interested in
depriving the decree-holders of the payment made in satisfaction of the decrees but
the State was certainly interested in having the question of law settled. The stand
taken by the appellant-State has been that in spite of the decrees under appeal having
been set aside, any payment already made thereunder would be treated by the State
as eX gratia payment.

In view of the law laid down in State of Punjab v. Shiv Ram & Ors.,(supra) all these
appeals are allowed. The judgments and decrees under appeals are set aside. All
the suits filed by the plaintiffs-respondents are dismissed. There will be no order as to
costs throughout. However, any amount paid by the appellant-State to the plaintiffs-
decree holders shall not be liable to be refunded by way of restitution.

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