# (2009] 3 S.C.R. 273 -1 MARTIN F. D'SOUZA v. MOHD. ISHFAQ

- **Citation:** [2009] 3 S.C.R. 273
- **Court:** Supreme Court of India
- **Decided:** 2009-02-17
- **Case number:** Civil Appeal No. 3541 of 2002
- **Bench:** Markandey Kat Ju, R.M. Lodha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2009-3-s-c-r-273-1-martin-f-d-souza-v-mohd-ishfaq-25573
- **Pages:** 53

## Headnote

"'
""
CONSUMER PROTECTION ACT, 1986:
Services of Doctors - Medical negligence - Patient c
suffering from renal failure -
Already undergoing
haemodialysis - Treatment - Certain medicines prescribed
- Patient complaining hearing impairment - Approaching
·~,
National Consumer Disputes Redressal Commission for
k;,.,
compensation - Commission allowing the complaint and
-+
awarding compensation -Appeal by Doctor- Held: Since the D
patient was not only suffering from renal failure, but also from
urinary tract infection and blood infection, as also high urea,
the doctor had naturally to take a drastic measure to attempt
to save the life of the patient - Situation was aggravated by
the non-cooperation of the patient - Extraordinary situations E
require extraordinary remedies - If the Doctor chose to save
"
the life of the patient rather than his hearing surely he cannot
~
be faulted - Thus in the facts of the case, the doctor was not
guilty of medical negligence - Consumer Fora/Criminal Court
should first refer the matter to a competent doctor or F
Committee of doctors specialized in the field and when prima
facie case of medical negligence is attributed, then only issue
notice to a doctor or hospital against whom complaint made
- Direction issued - Warning to police officials not to arrest
..,- "'
doctors in such cases unless the facts clearly come within the G
parameters laid down in Jacob Mathew's case - Penal
Code, 1860, s.304A - Negligence.
This appeal has been filed by a Doctor, whose
273
H
274
SUPREME COURT REPORTS
[2009) 3 S.C.R.
A
patient had alleged medical negligence against him
leading to hearing impairment and got certain amount of
compensation from the National Disputes Redressal
Commission.
B
Allowing the appeal, the Court
HELD:1.1. A medical practitioner is not liable to be
held negligent simply because things went wrong from
mischance or misadventure or through an error of
judgment in choosing one reasonable course of
c treatment in preference to another. He would be liable
only where his conduct fell below that of the standards
of a reasonably competent practitioner in his field. For
instance, he would be liable if he leaves a surgical gauze
inside the patient after an operation or operates on the
D wrong part of the body, and he would be also criminally
liable if he operates on someone for removing an organ
for illegitimate trade. [Para 41] [295-F-H; 296-A]
1.2. There is a tendency to confuse a reasonable
person with an error free person. An error of judgment
E may or may not be negligent. It depends on the nature
of the error. It is not enough to show that there is a body
of competent professional opinion which considers that
the decision of the accused professional was a wrong
decision, provided there also exists a body of
F
professional opinion, equally competent, which supports
the decision as reasonable in the circumstances. [Paras
42 and 43] [296-A-C]
Jacob Mathew vs. State of Punjab and Anr. (2005) 6
G
SCC 1; Bo/am vs. Friern Hospital Management Committee
(1957) 1 WLR 582 and Achutrao Haribhau Khodwa & others
vs. State of Maharashtra & others, AIR 1996 SC 2377, relied
on.
Eckersley vs. Binnie (1988) 18 Con LR 1, referred to.
H
....
..
--
" .....
-
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
275
--1
Hunter vs. Hanley 1955 SLT 213, referred to.
A
2.1. The standard of care has to be judged in the light
of knowledge available at the time of the incident and not
at the date of the trial. Also, where the charge of
negligence is of failure to use some particular equipment, 8
the charge would fail if the equipment was not generally
"
available at that point of time. [Para 44] [296-E-F]
2.2. The higher the·acuteness in an emergency and
the higher the complication, the more are the chances of
error of judgment. At times, the professional is confronted c
with making a choice between the devil and the deep sea
and has to choose the lesser evil. The doctor is often
called upon to adopt a procedure which involves higher
element of r

## Text

_Characters 0–39,991 of 99,586. This is a partial read: ask again with offset=39991 for what follows._

-
(2009] 3 S.C.R. 273
-1
MARTIN F. D'SOUZA
A
v.
MOHD. ISHFAQ
(Civil Appeal No. 3541 of 2002)
FEBRUARY 17, 2009
B
[MARKANDEY KAT JU AND R.M. LODHA, JJ.]
"'
""
CONSUMER PROTECTION ACT, 1986:
Services of Doctors - Medical negligence - Patient c
suffering from renal failure -
Already undergoing
haemodialysis - Treatment - Certain medicines prescribed
- Patient complaining hearing impairment - Approaching
·~,
National Consumer Disputes Redressal Commission for
k;,.,
compensation - Commission allowing the complaint and
-+
awarding compensation -Appeal by Doctor- Held: Since the D
patient was not only suffering from renal failure, but also from
urinary tract infection and blood infection, as also high urea,
the doctor had naturally to take a drastic measure to attempt
to save the life of the patient - Situation was aggravated by
the non-cooperation of the patient - Extraordinary situations E
require extraordinary remedies - If the Doctor chose to save
"
the life of the patient rather than his hearing surely he cannot
~
be faulted - Thus in the facts of the case, the doctor was not
guilty of medical negligence - Consumer Fora/Criminal Court
should first refer the matter to a competent doctor or F
Committee of doctors specialized in the field and when prima
facie case of medical negligence is attributed, then only issue
notice to a doctor or hospital against whom complaint made
- Direction issued - Warning to police officials not to arrest
..,- "'
doctors in such cases unless the facts clearly come within the G
parameters laid down in Jacob Mathew's case - Penal
Code, 1860, s.304A - Negligence.
This appeal has been filed by a Doctor, whose
273
H
274
SUPREME COURT REPORTS
[2009) 3 S.C.R.
A
patient had alleged medical negligence against him
leading to hearing impairment and got certain amount of
compensation from the National Disputes Redressal
Commission.
B
Allowing the appeal, the Court
HELD:1.1. A medical practitioner is not liable to be
held negligent simply because things went wrong from
mischance or misadventure or through an error of
judgment in choosing one reasonable course of
c treatment in preference to another. He would be liable
only where his conduct fell below that of the standards
of a reasonably competent practitioner in his field. For
instance, he would be liable if he leaves a surgical gauze
inside the patient after an operation or operates on the
D wrong part of the body, and he would be also criminally
liable if he operates on someone for removing an organ
for illegitimate trade. [Para 41] [295-F-H; 296-A]
1.2. There is a tendency to confuse a reasonable
person with an error free person. An error of judgment
E may or may not be negligent. It depends on the nature
of the error. It is not enough to show that there is a body
of competent professional opinion which considers that
the decision of the accused professional was a wrong
decision, provided there also exists a body of
F
professional opinion, equally competent, which supports
the decision as reasonable in the circumstances. [Paras
42 and 43] [296-A-C]
Jacob Mathew vs. State of Punjab and Anr. (2005) 6
G
SCC 1; Bo/am vs. Friern Hospital Management Committee
(1957) 1 WLR 582 and Achutrao Haribhau Khodwa & others
vs. State of Maharashtra & others, AIR 1996 SC 2377, relied
on.
Eckersley vs. Binnie (1988) 18 Con LR 1, referred to.
H
....
..
--
" .....
-
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
275
--1
Hunter vs. Hanley 1955 SLT 213, referred to.
A
2.1. The standard of care has to be judged in the light
of knowledge available at the time of the incident and not
at the date of the trial. Also, where the charge of
negligence is of failure to use some particular equipment, 8
the charge would fail if the equipment was not generally
"
available at that point of time. [Para 44] [296-E-F]
2.2. The higher the·acuteness in an emergency and
the higher the complication, the more are the chances of
error of judgment. At times, the professional is confronted c
with making a choice between the devil and the deep sea
and has to choose the lesser evil. The doctor is often
called upon to adopt a procedure which involves higher
element of risk, but which he honestly believes as
•
providing greate~ chances of success for the patient
..
D
rather than a procedure involving lesser risk but higher
chances of failure. Which course is more appropriate to
follow, would depend on the facts and circumstances of
a given case but a doctor cannot be penalized if he
adopts the former procedure, even if it results in a failure. E
The usual practice prevalent nowadays is to obtain the
consent of the patient or of the person in-charge of the
~
patient if the patient is not in a position to give consent
before adopting a given procedure. [Para 45] [296-F-H;
297-A-B]
F
2.3. There may be a few cases where an exceptionally
brilliant doctor performs an operation or prescribes a
treatment which has never been tried before to save the
life of a patient when no known method of treatment is
available. If the patient dies or suffers some serious harm, G
~-
)
should the doctor be held liable? Science advances by
experimentation, but experiments sometime end in failure
e.g. the operation on the Iranian twin sisters who were
joined at the head since birth, or the first heart transplant
by Dr. Barnard in South Africa. However, in such cases
H
276
SUPREME COURT REPORTS
[2009] 3 S.C.R.
A it is advisable for the doctor to explain the situation to the
patient and take his written consent. [Para 46) [297-B-D]
2.4. Simply because a patient has not favourably
responded to a treatment given by a doctor or a surgery
has failed, the doctor cannot be held straightway liable
B for medical negligence by applying the doctrine of res ipsa
loquitur. No sensible professional would intentionally
commit an act or omission which would result in harm
or injury to the patient since the professional reputation
of the professional would be at stake. A single failure may
C cost him dear in his lapse. [Para 47] [297-E-F]
3.1. When a patient dies or suffers some mishap,
there is a tendency to blame the doctor for this. Things
have gone wrong and, therefore, somebody must be
0 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
E appeared in it and made his submissions. [Para 49) [298E-F]
3.2. To fasten liability in criminal proceedings e.g.
under Section 304A IPC the degree of negligence has to
be higher than the negligence which is enough to fasten
F liability in civil proceedings. Thus for civil liability it may
be enough for the complainant to prove that the doctor
did not exercise reasonable care in accordance with the
principles, but for convicting a doctor in a criminal case,
it must also be proved that this negligence was gross
G amounting to recklessness. [Para 50) [298-F-H; 299-A]
4.1. From the principles and decisions relating to
medical negligence, it is evident that doctors and nursing
homes/hospitals need not be unduly worried about the
performance of their functions. The law is a watchdog,
H and not a bloodhound, and as long as doctors do their
I -
•
•
.
-~
. ,,
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
277
duty with reasonable care they will not be held liable even A
if their treatment was unsuccessful. However, every
doctor should, for his own interest, carefully read the
Code of Medical Ethics which is part of the Indian Medical
Council (Professional Conduct, Etiquette and Ethics)
Regulations, 2002 issued by the Medical Council of India 8
under Section 20A read with Section 3(m) of the Indian
Medical Council Act, 1956. [Paras 73 and 74] [308-F-H;
309-A]
4.2. The basic principle relating to the law of medical
negligence is the Bolam Rule. The test in fixing negligence C
is the standard of the ordinary skilled doctor exercising
and professing to have that special skill, but a doctor
need not possess the highest expert skill. [Para 76] [309C-D]
Indian Medical Association vs. V.P. Shantha 1995(6) D
sec 651, relied on.
Poonam Verma vs. Ashwin Patel & Ors. (1996) 4 SCC
332; Dr. Shiv Kumar Gautam vs. Alima, Revision Petition
No.586 of 1999 decided by National Consumer E
Commission; Sarwat Ali Khan vs. Prof. R. Gogi and others
Original Petition No.181 of 1997, decided on 18.7.2007 by
the National Consumer Commission; Pt. Parmanand Katara
vs. Union of India & Others AIR 1989 SC 2039; Paschim
Banga Khet Mazdoor Samity and others vs. State of West
F
Bengal and Another AIR 1996 SC 2426; Md. Suleman Ansari
(D.M.S.) vs. Shankar Bhandari (2005) 12 SCC 430; Surendra
Chauhan vs. State of M.P. (2000) 4 SCC 11 O; State of
Haryana and others vs. Raj Rani (2005) 7 SCC 22; State of
Punjab vs. Shiv Ram & others (2005) 7 SCC 1; State of G
Haryana and Others vs. Smt. Santra AIR 2000 SC 1888; P.N.
Rao vs. G. Jayaprakasu AIR 1990 AP 207; Dr. Laxman
Balkrishna Joshi vs. Dr. Trimbak Bapu Godbole and Another
AIR 1969 SC 128; Dr. Suresh Gupta vs. Government of
N.C. T. of Delhi and another AIR 2004 SC 4091; Nihal Kaur H
278
SUPREME COURT REPORTS
[2009) 3 S.C.R.
.
-
A vs. Director, P.G.l.M.S.R. (1996) CPJ 112; Spring Medows
Hospital & Another vs. Harjo/ Ahluwalia thr' K. S. Ahluwalia &
Another (1998) CPJ 1; Consumer Protection Council and
Others vs. Dr. M. Sundaram and Another (1998) CPJ 3;
Sethuraman Subramaniam Iyer vs. Triveni Nursing Home
B and Another (1998) CPJ 11 O; A. S. Mittal & Anr. vs. State of
U.P. & Ors. JT 1989 (2) SC 419, 1989 (3) SCC 223, referred
to.
"
5.1. The respondent already had high Blood
c
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
D chronic renal failure. The respondent's report also
established his resistance to all other antibiotics.
Gastroscopy was done on 4.6.1991 and Amikacin was
administered after test dosage only from 5.6.1991.
Amikacin was administered on 5th, 6th and 7th June, 1991
E and at this stage he did not complain of any side effects
and his temperature subsided rapidly. On 5.6.1991, he
was administered Cap. Augmentin 375 mg three times a
day for his serious Blood Infection and he was also
y
transferred one Unit of Blood during dialysis and his
F temperature subsided rapidly and he felt much better.
[Para 85] [311-F-G; 312-A-B]
5.2. The appellant advised the respondent in view of
his blood infection that he should not get transplanted for
G
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
H hospital on his own on 8.6.1991 at 9 a.m. In view of his
. '
•
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
279
insistence the respondent was discharged from the A
hospital on his own on 8.6.1991 at 9 a.m. The appellant
suggested alternate day Haemodialysis but the
respondent refused saying that he was staying too far
away and could not come three times a week for
Haemodialysis. In this situation, the appellant was left 8
with no choice but to suggest Injection Amikacin (500 mg)
twice a day in view of the respondent's infection and
delicate condition and his refusal to visit the
Haemodialysis facility on alternate dates. The appellant
also suggested certain drugs under the supervision of
the doctor when he would visit the dialysis unit. The drugs C
included Injection Amikacin 500 mg twice a day x 10 days
for urinary tract infection. [Paras 86 and 87] [312-B-F]
5.3. It appears that the respondent attended the
Haemodyalsis unit where he met the appellant on 11th, D
14th, 18th and 20th June, 1991. Thereafter the respondent
did not come to the hospital. On 11.6.1991 the
respondent complained to the appellant, of slight tinnitus
or ringing in the ear. The appellant immediately reviewed
the treatment on the discharge card in possession of the E
respondent and asked the respondent and also verbally
told his attendant i.e. his wife to stop Injection Amikacin
and Cap. Augmantine, and also marked 'X' on the
discharge card in his own hand writing on 11.6.1991 i.e.
3 days after discharge. Hence, as per direction of the F
appellant the respondent should have stopped receiving
Injection Amikacin after 10.6.1991, but on his own he kept
on taking Amikacin Injections. The Discharge Card as per
the respondent's complaint clearly shows that the said
injection had been ·x· crossed, and he was directed not G
to take the said injection from 11.6.1991 i.e. on his very
first complaint when he made mention of ringing in the
ears or tinnitus. [Paras 88 and 89] (313-8-E]
5.4. On perusal of the Xerox copies of the papers of
H
280
SUPREME COURT REPORTS
(2009] 3 S.C.R.
.
-
A the Cash Memo supplied by the respondent as per
annexure '4' it is evident that the respondent continued
to take the medicine against the advice of the appellant,
and had unilaterally been getting injected as late as
17.6.1991, i.e. 7 days after he had been instructed verbally
B and in writing in the presence of his attendant i.e. his wife
and staff members of the said hospital to stop Injection
Amikacin/Cap. Augmantine because of tinnitus as early
•
as on 11.6.1991. On 19.6.1991 a relative of the respondent
who identified himself on the phone as one Mr. Khan from
c 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. [Paras 90 and 91) [313i .
D F-H; 314-A]
•
5.5. From the above facts it is evident that the
appellant was not to blame in any way and it was the noncooperative attitude of the respondent, and his
continuing with the Amikacin injection even after
E 11.6.1991 which was the cause of his ailment, i.e. the
impairment of his hearing. A patient who does not listen
to his doctor's advice often has to face the adverse
~
consequences. [Para 92) [314-B-C)
F
5.6. 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
G
respondent to save his life but the respondent himself did
not cooperate. [Para 93) [314-C-D]
.
·~
6.1. From these deposition and affidavits it cannot be
said that the appellant was negligent. In fact most of the
doctors who have deposed or given their affidavits
H before the Commission have stated that the appellant
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
281
-·-'
was not negligent. [Para 106] [319-B-C]
A
6.2. There is no reason to disbelieve the allegations
of the appellant that on 11.6.1991 he had asked the
respondent to stop taking Amikacin injections, and in fact
this version is corroborated by the testimony of the
Senior Sister Mukta Kolekar in her affidavit. Hence, it was B
...
the respondent himself who is to blame for having
continued Amikacin after 11.6.1991 against the advice of
the appellant. [Para 108] [320-B-D]
7.1. The Commission, which consists of laymen in the c
field of medicine, has sought to substitute its own views
over that of medical experts, and has practically acted as
super-specialists in medicine. Moreover, it has practically
~
"\
brushed aside the evidence of Dr. Ghosh, whose opinion
..;
was sought on its own direction, as well as the affidavits
of several other doctors who have stated that the D
appellant acted correctly in the situation he was faced.
The Commission should have realized that different
doctors have different approaches, for instance, some
have more radical while some have more conservative
approaches. All doctors cannot be fitted into a straightE
•
jacketed formula, and cannot be penalized for departing
'
from that formula. [Paras 111 and 112] [321-A-D]
7.2. While this Court has no sympathy for doctors
.--.
who are negligent, it must also be said that frivolous
F
complaints against doctors have increased by leaps and
bounds in our country particularly after the medical
profession was placed within the purview of the
Consumer Protection Act. To give an example, earlier
L' >
when a patient who had a symptom of having a heart G
attack would come to a doctor, the doctor would
immediately inject him with Morphia or Pethidine injection
before sending him to the Cardiac Care Unit (CCU)
because in cases of heart attack time is the essence of
H
282
SUPREME COURT REPORTS
(2009] 3 S.C.R.
.
-
A the matter. However, in some cases the patient died before
he reached the hospital. After the medical profession was
brought under the Consumer Protection Act doctors who
administer the Morphia or Pethidine injection are often
blamed and cases of medical negligence are filed against
B them. The result is that many doctors have stopped
giving (even as family physicians) Morphia or Pethidine
injection even in emergencies despite the fact that from
•
the symptoms the doctor honestly thought that the
patient was having a heart attack. This was out of fear that
c if the patient died the doctor would have to face legal
proceedings. [Para 113] [321-D-H; 322-A]
7.3. Similarly in cases of head injuries (which are very
common in road side accidents in Delhi and other cities)
earlier the doctor who was first approached would start
D giving first aid and apply stitches to stop the bleeding.
However, now what is often seen is that doctors out of
fear of facing legal proceedings do not give first aid to the
patient, and instead tell him to proceed to the hospital by
which time the patient may develop other complications.
E [Para 114] [322-A-C]
7.4. Courts/Consumer Fora should keep the above
factors in mind when deciding cases related to medical
negligence, and not take a view which would be in fact a
F disservice to the public. The decision of this Court in
Indian Medical Association vs. V.P. Shantha should not be
understood to mean that doctors should be harassed
merely because their treatment was unsuccessful or
caused some mishap which was not necessarily due to
G
negligence. [Para 115] [322-C-D]
Indian Medical Association vs. V.P. Shantha 1995 (6)
' -.
sec 651, relied on.
8.lt may be mentioned that the All India Institute of
H
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
283
- "
Medical Sciences has been doing outstanding research
A
in Stem Cell Therapy for the last eight years or so for
treating patients suffering from paralysis, terminal cardiac
condition, parkinsonism, etc, though not yet with very
notable success. This does not mean that the work of
Stem Cell Therapy should stop, otherwise science cannot B
progress. [Para 116] [322-F-G]
,.
..;
9.1. Whenever a complaint is received against a
doctor or hospital by the Consumer Fora (whether
District, State or National) or by the Criminal Court then
before issuing notice to the doctor or hospital against c
whom the complaint was made the Consumer Forum or
Criminal Court should first refer the matter to a competent
doctor or committee of doctors, specialized in the field
relating to which the medical negligence is attributed, and
only after that doctor or committee reports that there is a D
prima facie case of medical negligence should notice be
then issued to the concerned doctor/hospital. This is
necessary to avoid harassment to doctors who may not
be ultimately found to be negligent. This Court further
warns the police officials not to arrest or harass doctors E
unless the facts clearly come within the parameters laid
down in Jacob Mathew's case, otherwise the policemen
will themselves have to face legal action. [Para 117] [322H; 323-A-C]
-·
9.2. In the present case the appellant was faced with
F
an extremely serious situation. Had the appellant been
only suffering from renal failure it is possible that a view
could be taken that the dose prescribed for the appellant
was excessive. Hr,wever, the respondent was not only
,,.. :.
suffering from renal failure but he was also suffering from G
urinary tract infection and also blood infection i.e.
Septicaemia which is blood pois9ning caused by bacteria
or a toxin. He had also ext~emely high urea. In this
extremely serious situation, the appellant had naturally to
H
284
SUPREME COURT REPORTS
[2009) 3 S.C.R.
A take a drastic measure to attempt to save the life of the
respondent. The situation was aggravated by the noncooperation of the respondent who seems to be of an
assertive nature as deposed by the witnesses.
Extraordinary situations require extraordinary remedies.
8 Even assuming that such a high dose of Amikacin would
ordinarily lead to hearing impairment, the appellant was
faced with a situation between the devil and the deep sea.
If he chose to save the life of the patient rather than his
hearing surely he cannot faulted. [Para 118] [323-C-G]
C
9.3. As regards the impairment of hearing of the
respondent it may be mentioned that there is no known
antibiotic drug which has no side effect. Hence merely
because there was impairment in the hearing of the
respondent that does not mean that the appellant was
D negligent. The appellant was desperately trying to save
the life of the respondent, which he succeeded in doing.
Life is surely more important than side effects. [Para 121]
[324-C-D]
E
10.1. The courts and Consumer Fora are not experts
in medical science, and must not substitute their own
views over that of specialists. It is true that the medical
profession has to an extent become commercialized and
there are many doctors who depart from their Hippocratic
oath for their selfish ends of making money. However, the
F entire medical fraternity cannot be blamed or branded as
aacking in integrity or competence just because of some
bad apples. [Para 123] [324-F-G]
10.2. It must be remembered that sometimes despite
G their best efforts the treatment of a doctor fails. For
instance, sometimes despite the best effort of a surgeon,
the patient dies. That does not mean that the doctor or
the surgeon must be held to be guilty of medical
negligence, unless there is some strong evidence to
H suggest that he is. On the facts of this particular case, the
....
, -
..
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
285
-.
impugned judgment and order of the National A
l.
Commission is set aside. [Paras 124 and 125] [324-H;
324-A-C]
Case Law Reference:
(2005) 6 sec 1
relied on
Para 30
B
(1957) 1 WLR 582
relied on
Para 38
..
(1988) 18 Con LR 1
referred to
Para 40
AIR 1996 SC 2377
relied on
Para 41
c
1955 SLT 213
referred to
Para 43
(1996) 4 sec 332
referred to
Para 53
AIR 1989 SC 2039
referred to
Para 55
-1
D
AIR 1996 SC 2426
referred to
Para 59
(2005) 12 sec 430
referred to
Para 60
(2000) 4 sec 11 o
referred to
Para 61
(2005) 1 sec 22
referred to
Para 62
E
(2005) 1 sec 1
referred to
Para 62
l
AIR 2000 SC 1888
referred to
Para 62
AIR 1990 AP 207
referred to
Para 63
F
AIR 1969 SC 128
referred to
Para 64
AIR 2004 SC 4091
referred to
Para 65
I
(1996) CPJ 112
referred to
Para 67
G
..,. .
(1998) CPJ 1
referred to
Para 68
(1998) CPJ 3
referred to
Para 69
(1998) CPJ 110
referred to
Para 70
H
286
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(2009] 3 S.C.R.
A
JT 1989 (2) SC 419 =
1989 (3) sec 223
referred to
Para 71
1995(6) sec 651
relied on
Para 72
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
3451 of 2002.
c
D
From the final Judgment and Order dated 22.3.2002 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 178 of 1992.
Manu Aggarwal, Manik Karanjawala and Pragya Ohri for
the Appellant.
Mala Goel and Asheesh Kumar Mishra (for Rajinder
Mathur) Goel for the Respondents.
The Judgment of the Court was delivered by
MARKANDEY KAT JU, J. 1. This appeal against the
judgment of the National Consumer Disputes Redressal
E Commission, New Delhi dated 22.3.2002 has been filed under
Section 23 of the Consumer Protection Act, 1986.
2. Heard learned counsel for the parties and perused the
record.
F
3. The brief facts of the case are narrated below :
4. In March 1991, the respondent who was suffering from
chronic renal failure was referred by the Director, Health
Services to the Nanavati Hospital, Mumbai for the purpose of
G a kidney transplant.
5. On or about 24.4.1991, the respondent reached
Nanavati Hospital, Bombay and was under the treatment of the
appellant Doctor. At that stage, the respondent was undergoing
H haemodialysis twice a week on account of chronic renal failure.
·,
. ..
_,
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
287
[MARKANDEY KAT JU, J.]
_.,
Investigations were underway to find a suitable donor. The A
respondent wanted to be operated by Dr. Sonawala alone who
was out of India from 1.6.1991to1.7.1991.
'
6. On 20.5.1991, the respondent approached the appellant
Doctor. At the time, the respondent, who was suffering from high
~
fever, did not want to be admitted to the Hospital despite the
B
,
•·
advice of the appellant. Hence, a broad spectrum antibiotic was
J
prescribed to him.
7. From 20.5.1991 to 29.5.1991, the respondent attended
the Haemodialysis Unit at Nanavati Hospital on three c
occasions. At that time, his fever remained between 10101040F. The appellant constantly requested the complainant to
get admitted to hospital but the respondent refused.
. \
8. On 29.5.1991 the respondent who had high fever of
1040F finally agreed to get admitted to hospital due to his D
serious condition.
9. On 30.5.1991 the respondent was investigated for renal
package. The medical report showed high creatinine 13 mg.,
blood urea 180 mg. The Haemoglobin of the respondent was
E
'
4.3%. The following chart indicates the results of the study in
l
comparison to the normal range :-
< '
Normal Range
i
S. Creatinine 13.0 mgs. % 0.7 - 1.5 mgs. %
F
Blood Urea 180 mgs. % 10-50 mgs. %
~
Haemoglobin 4.3 gms. % 11.5-13.5 gms. %
10. On 30.5.1991, the respondent was investigated for G
~.-
i.
typhoid fever, which was negative. He was also investigated for
ESR, which was expectedly high in view of renal failure and
anemia infection. Urine analysis was also carried out which
showed the presence of bacteria.
H
l~
288
SUPREME COURT REPORTS
[2009] 3 S.C.R.
...
A
11. On 3.6.1991, the reports of the urine culture and
sensitivity were received. The report showed severe urinary
tract infection due to Klebsiella species (1 lac/ml.). The report
also showed that the infection could be treated by Amikacin and
Methenamine Mandelate and that the infection was resistant to
)•
B other antibiotics. Methnamine Mandelate cannot be used in
Jpatients suffering from renal failure.
)or12. On 4.6.1991, the blood culture report of the respondent
l
was received, which showed a serious infection of the blood
c
stream (staphylococcus species).
13. On 5.6.1991, Amikacin injection was administered to
the respondent for three days (from 5th to 7th June, 1991 ),
since the urinary infection of the respondent was sensitive to
~
Amikacin. Cap. Augmentin (375 mg.) was administered three
D times a day for the blood infection and the respondent was
transfused one unit of blood during dialysis. Consequent upon
the treatment, the temperature of the respondent rapidly
subsided. ·
14. From 5.6.1991 to 8.6.1991, the respondent insisted
i=
E on immediate kidney transplant even though the respondent
had advised him that in view of his blood and urine infection
no transplant could take place for six weeks.
15. On 8.6.1991, the respondent, despite the appellant's
F advice, got himself discharged from Nanavati Hospital. Since
the respondent was suffering from blood and urinary infection
and had refused to come for haemodialysis on alternate days,
the appellant suggested Injection Amikacin (500 mg.) twice a
day. Certain other drugs were also specified to be taken under
"'
G the supervision of the appellant when he visited the Dialysis
Unit.
.1
-.
16. On 11.6.1991, the respondent attended the
Haemodialysis Unit and complained to the appellant that he had
slight tinnitus (ringing in the ear). The appellant has alleged that
H he immediately told the respondent to stop taking the Amikacin
,•
. I
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
[MARKANDEY KAT JU, J.)
289
and Augmentin and scored out the treatment on the discharge
A
card. However, despite express instructions from the appellant,
the respondent continued to take Amikacin till 17.6.1991.
Thereafter, the appellant was not under the treatment of the
appellant.
B
17. On 14.6.1991, 18.6.1991 and 20.6.1991 the
respondent received haemodialysis at Nanavati Hospital and
allegedly did not complain of deafness during this period.
18. On 25.6.1991, the respondent, on his own accord, was
admitted to Prince Aly Khan Hospital, where he was also
C
treated with antibiotics. The complainant allegedly did not
complain of deafness during this period and conversed with
doctors normally, as is evident from their evidence .
19. On 30. 7.1991, the respondent was operated upon for
transplant after he had ceased to be under the treatment of the
D
appellant. On 13.8.1991, the respondent was discharged from
Prince Aly Khan Hospital after his transplant. The respondent
returned to Delhi on 14.8.1991, after discharge.
20. On 7. 7.1992, the respondent filed a complaint before
E
the National Consumer Disputes Redressal Commission, New
Delhi (being Original Petition No.178 of 1992) claiming
compensation of an amount of Rs.12,00,000/- as his hearing
had been affected. The appellant filed his reply stating, inter
alia, that there was no material brought on record by the
F
respondent to show any co-relationship between the drugs
prescribed and the state of his health. Rejoinder was filed by
the respondent.
21. The National Consumer Disputes Redressal
..,, ii
Commission (hereinafter referred to as 'the Commission')
G
passed an order on 6.10.1993 directing the nomination of an
expert from the All India Institute of Medical Sciences, New
Delhi (AllMS) to examine the complaint and give an opinion.
This was done in order to get an unbiased and neutral opinion.
H
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SUPREME COURT REPORTS
[2009] 3 S.C.R.
A
22. AllMS nominated Dr. P. Ghosh, and the report of Dr.
P. Ghosh of the All India Institute of Medical Sciences was
submitted before the Commission, after examining the
respondent. Dr. Ghosh was of the opinion that the drug
Amikacin was administered by the appellant as a life saving
B measure and was rightly used. It is submitted by the appellant
that the said report further makes it clear that there has been
no negligence on the part of the appellant.
23. Evidence was thereupon led before the Commission.
C Two affidavits by way of evidence were filed on behalf of the
respondent, being that of his wife and himself. The witnesses
for the respondent were :-
D
(i)
The respondent Mohd. lshfaq
(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
E evidence were filed. These were of the appellant himself, Dr.
Danbar (a doctor attached to the Haemodialysis Department
of Nanavati Hospital), Dr. Abhijit Joshi (a Resident Senior
Houseman of Nanavati Hospital), Mrs. Mukta Kalekar (a Senior
sister at Nanavati Hospital), Dr. Sonawala (the Urologist who
F
referred the respondent to the appellant) and Dr. Ashique Ali
Rawal (a Urologist attached to Prince Aly Khan Hospital). The
witnesses for the appellant were:-
(i)
The appellant-Dr. M.F. D'Souza
G
(ii)
Dr. Danbar
(iii)
Dr. Upadhyay
(iv)
Mrs. Mukta Kalekar
H
(v)
Dr. Ashique Ali Rawal
...
..
.. ,
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
291
[MARKANDEY KAT JU, J.]
, ...
25. The respondent also filed an opinion of the Chief of A
Nephrology at Fairview General Hospital, Cleveland, Ohio,
which was heavily relied upon in the impugned judgment. The
appellant has alleged that the said opinion was written without
examining the respondent and, in any case, the appellant was
not afforded an opportunity of cross-examining the person who
B
gave the opinion.
"'
26. The case of the respondent, in brief, is that the
appellant was negligent in prescribing Amikacin to the
respondent of 500 mg twice a day for 14 days as such dosage
was excessive and caused hearing impairment. It is also the c
case of the respondent that the infection he was suffering from
was not of a nature as to warrant administration of Amikacin
to him.
-..
27. The appellant submitted before the Commission that D
-
at the time of admission of the respondent on 29.5.1991 to the
hospital, he had fever of 1040F and, after investigation, it was
found that his serum creatinine level was 13 mg%, blood urea
180 mg% and Haemoglobin 4.3 mg. Amikacin was prescribed
to him only after obtaining blood and urine culture reports on
E
3rd and 4th June, 1991, which showed the respondent resistant
to other antibiotics. Even the witness of the respondent (Dr.
Sareen) conceded that he would have prescribed Amikacin in
•
the facts of the case. However, the Commission allowed the
complaint of the respondent by way of the impugned order
F
dated 9.4.2002 and awarded Rs.4 lakh with interest @ 12%
from 1.8.1992 as well as R,s.3 lakh as compensation as well
as Rs.5000/- as costs.
28. Before discussing the facts of the case, we would like
to state the law regarding Medical Negligence in India.
G
~ ..
29. Cases, both civil and criminal as well as in Consumer
Fora, are often filed against medical practitioners and hospitals,
complaining of medical negligence against doctors/hospitals/
nursing homes and hence the latter naturally would like to know H
-
292
SUPREME COURT REPORTS
[2009) 3 S.C.R.
A about their liability.
30. The general principles on this subject have been lucidly
and elaborately explained in the three Judge Bench decision
of this Court in Jacob Mathew vs. State of Punjab and Anr.
B (2005) 6 SCC 1. However, difficulties arise in the application
of those general principles to specific cases.
31. For instance, in para 41 of the aforesaid decision it
was observed :
c
"The practitioner must bring to his task a reasonable
degree of skill and knowledge, and must exercise a
reasonable degree of care. Neither the very highest nor a
very low degree of care and competence is what the law
requires."
D
32. Now what is reasonable and what is unreasonable is
a matter on which even experts may disagree. Also, they may
disagree on what is a high level of care and what is a low level
of care.
E
33. To give another example, in paragraph 12 to 16 of
Jacob Mathew's case (Supra), it has been stated that simple
negligence may result only in civil liability, but gross negligence
or recklessness may result in criminal liability as well. For civil
liability only damages can be imposed by the Court but for
F criminal liability the Doctor can also be sent to jail (apart from
damages which may be imposed on him in a civil suit or by
the Consμmer Fora). However, what is simple negligence and
what is gross negligence may be a matter of dispute even
among experts.
G
34. The law, like medicine, is an inexact science. One
cannot predict with certainty an outcome of many cases. It
depends on the particular facts and circumstances of the case,
and also the personal notions of the Judge concerned who is
hearing the case. However, the broad and general legal
H principles relating to medical negligence need to be
"' .
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
293
[MARKANDEY KAT JU, J.]
# -l
understood.
A
35. Before dealing with these principles two things have
to be kept in mind : (1) Judges are not experts in medical
science, rather they are lay men. This itself often makes it
somewhat difficult for them to decide cases relating to medical
B
negligence. Moreover, Judges have usually to rely on
J.
testimonies of other doctors which may not necessarily in all
cases be objective, since like in all professions and services,
doctors too sometimes have a tendency to support their own
colleagues who are charged with medical negligence. The c
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 D
,-•
errors of judgment but if they are punished for this no doctor
can practice his vocation with equanimity. Indiscriminate
proceedings and decisions against doctors are counter
productive and serve society no good. They inhibit the free
exercise of judgment by a professional in a particular situation.
E
36. Keeping the above two notions in mind we may discuss
the broad general principles relating to medical negligence.
~
General Princigles Relating to Medical Negligence
F
37. As already stated above, the broad general principles
of medical negligence have been laid down in the Supreme
Court Judgment in Jacob Mathew vs. State of Punjab and Anr.
(supra). However, these principles can be indicated briefly here
G
,.. ..
38. The basic principle relating to medical negligence is
known as the BOLAM Rule. This was laid down in the judgment
of Justice McNair in Bo/am vs. Friern Hospital Management
Committee (1957) 1 WLR 582 as follows:
H
294
SUPREME COURT REPORTS
[2009] 3 S.C.R.
)-
~
A
"Where you get a situation which involves the use of some
special skill or competence, then the test as to whether
there has been negligence or not is not the test of the man
on the top of a Clapham omnibus, because he has not got
this special skill. The test is the standard of the ordinary
B
skilled man exercising and professing to have that
special skill. A man need not possess the highest expert
skill..... It is well-established law that it is sufficient if he
exercises the ordinary skill of an ordinary competent man
exercising that particular art."
c Bolam's test has been approved by the Supreme Court in
Jacob Mathew's case.
39. In Halsbury's Laws of England the degree of skill and
care required by a medical practitioner is stated as follows :
•
D
"The practitioner must bring to his task a reasonable
-
degree of skill and knowledge, and must exercise a
reasonable degree of care. Neither the very highest nor a
very low degree of care and competence, judged in the
E
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
F
by a responsible body of medical men skilled in that
particular art, even though a body of adverse opinion also
existed among medical men.
Deviation from normal practice is not necessarily
G
evidence of negligence. To establish liability on that basis
it must be shown (1) that there is a usual and normal
~ ""'
practice; (2) that the defendant has not adopted it; and (3)
that the course in fact adopted is one no professional man
of ordinary skill would have taken had he been acting with
H
•
MARTIN F. D'SOUZA v. MOHD. ISHFAQ
295
[MARKANDEY KAT JU, J.]
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
A
B
lag behind other ordinary assiduous and intelligent C
members of his profession in the knowledge of new
advances, discoveries and developments in his field.