# KUSUM SHARMA & OTHERS v. BATRA HOSPITAL & MEDICAL RESEARCH CENTRE & OTHERS

- **Citation:** [2010] 2 S.C.R. 685
- **Court:** Supreme Court of India
- **Decided:** 2010-02-10
- **Case number:** Civil Appeal No.1385 of 2001
- **Bench:** Dalveer Bhandari, Harjit Singh Bedi!
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kusum-sharma-others-v-batra-hospital-medical-research-centre-others-26626
- **Pages:** 44

## Headnote

Consumer Protection Act, 1986:
A
B
c
Deficiency in Service - Claim for compensation - Death
of patient in hospital - Allegation of medical negligence in
conducting surgery and post surgical care - HELD: The
doctor who performed the operation had reasonable degree
of skill and knowledge - National Commission has rightly 0
held him not guilty of negligence - Merely because the doctor
chooses one course of action in preference to the other, he
would not be liable if the course of action chosen by him was
acceptable to the medical profession - Tort - Negligence -
Difference between 'negligence and 'criminal negligence'.
E
Criminal Law:
Criminal negligence -Medical negligence - Purpose
behind holding a professional liable for his act or omission -
HELD: Is to make life safer and to eliminate the possibility of F
recurrence of sucf? negligence in future - At the same time,
courts have to be extremely careful /to ensure that
professionals are not unnecessarily harassed otherwise they
will not be able to carry out their professional duties without
fear. - It is for the complainant to clearly make out a case of G
negligence before a medical practitioner is proceeded against
criminally - A medical practitioner would be liable only where
his conduct fell below that of standards of a reasonably
1
competent practitioner in his field - A mere deviation from
685
H
686
SUPREME COURT REPORTS
[2010) 2 S.C.R.
A
normal professional practice is not necessarily evidence of
negligence - Guidelines laid down - Penal Code, 1860 -
ss.88, 92 and 370.
The husband of appellant No. 1 was admitted in
8
respondent no. 1 hospital on 18.3.1990. A surgical
operation for removal of an abdominal tumor, which was
found to be n1alignant, was carried out on 2.4.199~ by
respondent no. 3. As the flow of fluid did not stop, a
second surgery was carried out on 23.5.1990. The patient
was discharged on 23.6.1990 with an advice to follow up
C and for change of the dressing. Some post operative
complications were stated to have arisen and respondent
visited a few other hospitals including the AllMS. On
9.10.1990 the patient was again taken to respondent no.
1-hospital where he died on 11.10.1990 on account of
D 'pyogenic meningitis'. Thereupon the appellants filed a
complaint uls 21 of the .. Consumer Protection Act, 1986
before the National· Consumer Disputes Redressal
Commission claiming compensation for alleged
deficiency in service and medical negligence on the part
E of the respondents in the treatment of the deceased. The
National Commission did not find any merit in the
allegations and dismissed tlie complaint. Aggrieved, the
claimants filed" the appeal.
F
1
Dismissing the, appeal, the Court
HELD: 1.1. In the instant case, the doctor, respondent
no.3, who performed the operation had reasonable
degree of skill and knowledge. The National Commission,
which considered the medical literature and evidence of
G eminent doctors of AllMS, rightly held respondent no. 3
_not guilty of negligence. [Para 57] [711-C]
H
Spring Meadows Hospital & Another v. Harjot Ahluwalia
through K. S. Ahluwalia & Another 1998 ( 2 ) SCR 428 =
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 687
RESEARCH CENTRE
(1998) 4 SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr.
A
Trimbak Bapu Godbole & Anr. 1969 SCR 206 =AIR 1969
SC 128 ; State of Haryana v. Smt. Santra 2000 ( 3 ) SCR
195 = (2000) 5 SCC 182 ; and Poonam Verma v. Ashwin
Patel & Ors. 1996 ( 2 ) Suppl. SCR 671 = (1996) 4 SCC
332 - referred to.
B
R. v. Lawrence, [1981] 1 All ER 974 (HL); R. v. Caldwell
1981(1) All ER 961 (HL); Bbfam v. Friern Hospital
Management Committee (1957) I WLR 582 : (1957) 2 All ER
118; Roe and Wool/eyv. Minister of Health (1954) 2 QB 66;
C
Whitehouse v. Jordon & Another (1981) 1 All ER 267 ;Chin
Keow v. Government of Malaysia & Anr. (1967) WLR 813;
Hucks v. Cole & Anr. (1968) 118 New LJ 469; Hunter v.
Hanley 1955 SLT 213- referred to .
.
Black's Law Dictionary; Halsbury's Laws of England D
(Fourth Edition, Vol.30, Para 35), refe

## Text

_Characters 0–39,995 of 81,334. This is a partial read: ask again with offset=39995 for what follows._

[2010] 2 S.C.R. 685
KUSUM SHARMA & OTHERS
v.
BATRA HOSPITAL & MEDICAL RESEARCH CENTRE &
OTHERS
(Civil Appeal No.1385 of 2001)
FEBRUARY 10, 2010
[DALVEER BHANDARI AND HARJIT SINGH BEDI! JJ.]
Consumer Protection Act, 1986:
A
B
c
Deficiency in Service - Claim for compensation - Death
of patient in hospital - Allegation of medical negligence in
conducting surgery and post surgical care - HELD: The
doctor who performed the operation had reasonable degree
of skill and knowledge - National Commission has rightly 0
held him not guilty of negligence - Merely because the doctor
chooses one course of action in preference to the other, he
would not be liable if the course of action chosen by him was
acceptable to the medical profession - Tort - Negligence -
Difference between 'negligence and 'criminal negligence'.
E
Criminal Law:
Criminal negligence -Medical negligence - Purpose
behind holding a professional liable for his act or omission -
HELD: Is to make life safer and to eliminate the possibility of F
recurrence of sucf? negligence in future - At the same time,
courts have to be extremely careful /to ensure that
professionals are not unnecessarily harassed otherwise they
will not be able to carry out their professional duties without
fear. - It is for the complainant to clearly make out a case of G
negligence before a medical practitioner is proceeded against
criminally - A medical practitioner would be liable only where
his conduct fell below that of standards of a reasonably
1
competent practitioner in his field - A mere deviation from
685
H
686
SUPREME COURT REPORTS
[2010) 2 S.C.R.
A
normal professional practice is not necessarily evidence of
negligence - Guidelines laid down - Penal Code, 1860 -
ss.88, 92 and 370.
The husband of appellant No. 1 was admitted in
8
respondent no. 1 hospital on 18.3.1990. A surgical
operation for removal of an abdominal tumor, which was
found to be n1alignant, was carried out on 2.4.199~ by
respondent no. 3. As the flow of fluid did not stop, a
second surgery was carried out on 23.5.1990. The patient
was discharged on 23.6.1990 with an advice to follow up
C and for change of the dressing. Some post operative
complications were stated to have arisen and respondent
visited a few other hospitals including the AllMS. On
9.10.1990 the patient was again taken to respondent no.
1-hospital where he died on 11.10.1990 on account of
D 'pyogenic meningitis'. Thereupon the appellants filed a
complaint uls 21 of the .. Consumer Protection Act, 1986
before the National· Consumer Disputes Redressal
Commission claiming compensation for alleged
deficiency in service and medical negligence on the part
E of the respondents in the treatment of the deceased. The
National Commission did not find any merit in the
allegations and dismissed tlie complaint. Aggrieved, the
claimants filed" the appeal.
F
1
Dismissing the, appeal, the Court
HELD: 1.1. In the instant case, the doctor, respondent
no.3, who performed the operation had reasonable
degree of skill and knowledge. The National Commission,
which considered the medical literature and evidence of
G eminent doctors of AllMS, rightly held respondent no. 3
_not guilty of negligence. [Para 57] [711-C]
H
Spring Meadows Hospital & Another v. Harjot Ahluwalia
through K. S. Ahluwalia & Another 1998 ( 2 ) SCR 428 =
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 687
RESEARCH CENTRE
(1998) 4 SCC 39 and Dr. Laxman Balkrishna Joshi v. Dr.
A
Trimbak Bapu Godbole & Anr. 1969 SCR 206 =AIR 1969
SC 128 ; State of Haryana v. Smt. Santra 2000 ( 3 ) SCR
195 = (2000) 5 SCC 182 ; and Poonam Verma v. Ashwin
Patel & Ors. 1996 ( 2 ) Suppl. SCR 671 = (1996) 4 SCC
332 - referred to.
B
R. v. Lawrence, [1981] 1 All ER 974 (HL); R. v. Caldwell
1981(1) All ER 961 (HL); Bbfam v. Friern Hospital
Management Committee (1957) I WLR 582 : (1957) 2 All ER
118; Roe and Wool/eyv. Minister of Health (1954) 2 QB 66;
C
Whitehouse v. Jordon & Another (1981) 1 All ER 267 ;Chin
Keow v. Government of Malaysia & Anr. (1967) WLR 813;
Hucks v. Cole & Anr. (1968) 118 New LJ 469; Hunter v.
Hanley 1955 SLT 213- referred to .
.
Black's Law Dictionary; Halsbury's Laws of England D
(Fourth Edition, Vol.30, Para 35), referred to.
1.2. A clear distinction exists between "simple lack
of care" incurring civil liability and "very high degree of
negligence" which is required in criminal cases. As has
E
been held by this Court, 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 F
failure to exercise 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
G
person to have adopted. [Para 66 and 68] [713-D-F; 714C-E]
Syad Akbar v. State of Kamataka 1980 ( 1 ) SCR 95 =
(1980) 1 SCC 30 ; Bhalchandra alias Bapu & Another v.
H
688
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A State of Maharashtra 1968 SCR 766 =AIR 1968 SC 1319;
and Jacob Mathew v. State of Punjab & Another 2005 (2)
Suppl. SCR 307 = (2005) 6 SCC 1, referred to.
Andrews v. Director of Public Prosecutions [1937] A.C.
8 576, referred to.
Charlesworth & Percy on Negligence (10th Edn., 2001)
Para 1.13, referred to.
1.3. This Court has held that it is enough for the
·< c 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
0 approved practice is enough to clear him of the charge.
Two things are pertinent to be noted: Firstly, 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. Secondly, when
E 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. [Para 75 and 76) [718F E-G]
2.1. A doctor 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
G 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.The professional $hould be
held liable for his act or omission, if negligent, is to make
H life safer .and to eliminate the possibil.ity of recurrence of
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 689
RESEARCH CENTRE
negligence in future. But, at the same time courts have
A
to be extremely careful to ensure that professionals are
not unnecessarily harassed otherwise they will not be
able to carry out their professional duties without fear.
[Para 78 and 80] [719-E-H; 720-A]
2.2. 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
B
in the given facts and circumstances no medical
professional in his ordinary senses and prudence would
C
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. A professional
deserves total protection. The Indian Penal Code, 1860
has taken care to ensure that people who act in good
faith should not be punished. Sections 88, 92 and 370 IPC
D
give adequate protection to the professional and
particularly medical professionals. [Para 81 and 91] [720B-C; 725-B]
Kurban Hussein Mohammedali Rangawal/a v. State of E
Maharashtra (1965) 2 SCR 622; Indian Medical Association
v. V.P. Shantha & Others 1995 ( 5 ) Suppl. SCR 110 =
(1995) 6 SCC 651; Achutrao Haribhau Khodwa & Others v.
State of Maharashtra & Others 1996 ( 2) SCR 881 = (1996)
2 SCC 634; C.P. Sreekumar (Dr.), MS (Ortho) v. S.
F
Ramanujam 2009 (7 ) SCR 272 = (2009) 7 SCC 130,
refered to.
John Oni Akerele v. The King AIR 1943 PC 72; Emperor
v. Omkar Rampratap (1902) 4 Born LR 679, referred to.
3. On scrutiny of the leading cases, 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:-
G
H
690
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2010] 2 S.C.R.
I.
Negligence Js the breach of a duty exercised
by omiss_ion to do something which a
reasonable
man,
guided
by
those
considerations which ordinarily regulate the
conduct of human affairs, would do, or doing
something which a prudent and reasonable
man would not do.
II.
Negligence is an essential ingredient of the
offence. The· negligence to be established by
the prosecution must be culpable or gross and
not the negligence merely based upon an erro~
of judgment.
Ill.
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 circumstances of each
case is what the law requires.
IV.
A medical practitioner would be liable only
where his conduct fell below that of the
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
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL . 691
RESEARCH CENTRE
lesser risk but higher chances of failure. Just A
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.
s
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
C
not be liable if the course of action chosen by
him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of
the medical profession if no Doctor could o
administer medicine without a halter round his
neck.
IX.
x.
XI.
It is our bounden duty and obligation of the
civil society to ensure that the medical
professionals are not unnecessarily harassed
or humiliated so that they can perform their
professional duties without fear and
apprehension.
E
The medical practitioners at times also have to
F
be saved from such a class of complainants
who use criminal process as a tool for
pressurizing the medical professionals/
hospitals particularly private hospitals or
clinics
for
extracting
uncalled
for G
compensation. Such malicious proceedings
deserve to be discarded against the medical
practitioners.
The medical professionals are entitled to get
H
A
B
692
SUPREME COURT REPORTS
(2010) 2 S.C.R.
protection so long as they perform their duties
with reasonable skill and competence and in
· the interest of the patients. The interest and
welfare of the patients have to be paramount
for the medical professionals. [Para 94] [725-GH; 726-A-H; 727-A-G]
4.1. It is not that doctors can never be prosecuted for
medical negligence. As long as the doctors have
performed their duti~s and exercised an ordinary degree
of professional skill .and competence, they cannot be
C held guilty of medical negligence. It is imperative that the
doctors must be able to perform their professional duties
with free mind. [Para 95] [728-A-B]
4.2. In the facts and circumstances of the case, the
D appellants have failed to make out any case of medical
negligence against the. respondents. The National
Commission was justified in dismissing the complaint of
the appellants. No interference is called for. [Para 96 and
97] [728-C-D]
E
Case Law Reference:
1998 (2) SCR 428
referred to
para 47
1969 SCR 206
referred to
para 47
F
(1957) I WLR 582
referred to
para 49
(1957) 2 All ER 118=
(1954) 2 QB 66
referred to
para 51
(1981) 1 All ER 267
referred to
para 53
G
(1967) WLR 813
referred to
para 54
2000 (3) SCR 195
referred to
para· 55
1996 (2) Suppl. SCR 671 referred to
para 56
H
[1981] 1 All ER 974 (HL)
referred to
para 64
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 693
RESEARCH CENTRE
1981(1) All ER 961 (HL)
referred to
para 64
A
[1937} A.C. 576
referred to
para 66
1980 (1) SCR 95
referred to
para 67
1968 SCR 766
referred to
para 68
B
2005 (2 ) Suppl. SCR 307
referred to
para 69
(1968) 118 New LJ 469
referred to
para 73
1955 SLT 213
referred to
para 74 c
AIR 1943 PC 72
referred to
para_82
( 1965) 2 SCR 622
referred to
para 84
(1902) 4 Born LR 679
referred to
para 84
1995 (5) Suppl. SCR 110
referred to
para 86
D
1996 (2) SCR 881
referred to
para 88
2009 (7) SCR 272
referred to
para 92
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
E
1385 of 2001.
From the Judgment & Order dated 30.8.2000 of the
National Consumer Disputes Redressal Commission, New
Delhi in Original Petition No. 116 of 1991.
F
Gp. Capt, Karan Singh Bhati, Aishwarya Bhati, Himanshu
Singh and Rekha Giri for the Appellants.
Manvendra Verma, Sudhir Vats, Sanveer Mehalwal (for
Kamakshi S. Mehlwal), Parmanand Gaur (N.P.) Sudhir Kumar
G
Gupta, (N.P.), Somnath Mukherjee, (N.P.) and Ankit Gupta (for
Maninder Singh) for the Respondents.
The Judgment of the Court was delivered by
H
694
SUPREME COURT REPORTS
{2010] 2 S.C.R.
A
DALVEER BHANDARI, J. 1. This appeal is directed
B
against the judgment and order dated 30th August, 2000
passed by the National Consumer Disputes Redressal
Commission, New Delhi (for short, ·National Commission') in
Original Petition No.116 of 1991.
2. The appellants filed a complaint under section 21 of the
Consumer Protection Act, 1986 claiming compensation of
Rs.45 lakhs attributing deficiency in services and medical
negligence in the treatment of the deceased Shri R.K. Sharma
C (who was the husband of appellant no.1, Kusum Sharma and
the father of appellant nos. 2 and 3).
3. Brief facts "Yhich are necessary to dispose of this appeal
are as under:-
D
4. Late Shri R.K. Sharma was a Senior Operations
Manager in the Indian Oil Corporation (Marketing Division). In
June 1989, he developed blood pressure. He was very obese.
He complained of swelling and breathlessness while climbing
stairs. He visited Mool Chand Hospital on 10.12.1989 but no
E diagnosis could be made. The Indian Oil Corporation referred
him to Batra Hospital on 14.3.1990 where he was examined
by Dr. R.K. Mani, respondent no.2 and Dr. S. Arora who
advised him to get admitted for Anarsarca (Swelling).
5. On 18.3.1990, Shri Sharma was admitted in Batra
F Hospital. On 20.3.1990, an ultrasound of abdomen was done
and the next day, i.e., on 21.3.1990, a C.T. scan of abdomen
was done and it was found that there was a smooth surface
mass in the left adrenal measuring 4.5 x 5 cm and that the right
adrenal was normal. Surgery became imperative for removing
G .the left adrenal. The deceased, Shri Sharma and appellant no.1
were informed by Dr. Mani, respondent no.2 that it was well
encapsulated benign tumor of the left adrenal oaf less than 5
cm in size which could be taken out by an operation. It was
decided to carry out the surgical operation for the removal of
H
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 695
RESEARCH CENTRE [DALVEER BHANDARI, J.]
abdominal tumor. On 2.4.1990, the doctor obtained consent A
from the appellants for the operation of removal of abdominal
tumor. On test, the tumor was found to be malignant. The
treatment for malignancy by way of administering Mitotane could
not be given as it was known to have side effects.
B
6. The surgery was carried out on 2.4.1990 by Dr. Kapil
Kumar, respondent no.3. During the surgery, the body of the
pancreas was damaged which was treated and a drain was
fixed to drain out the fluids. According to the appellants,
considerable pain, inconvenience and anxiety were caused to C
the deceased and the appellants as the flow of fluids did not
stop. After another expert consultation with Dr. T.K. Bose,
respondent no.4 a second surgery was carried out on
23.5.1990 in Batra Hospital by Dr. Bose assisted by Dr. Kapil
Kumar.
D
7. Shri Sharma was fitted with two bags to drain out the
fluids and in due course, wounds were supposed to heal inside
and the fluid was to stop. The deceased was discharged on
23.6.1990 carrying two bags on his body, with an advice to
follow up and for change of the dressing. The deceased next E
visited Batra Hospital only on 31.8.1990 and that too to obtain
a Medical Certificate from Dr. Mani, respondent no.2.
8. On 9.10.1990, Shri Sharma vomited at home and
arrangements for shifting him to the Batra Hospital were made
F
and the Hospital's ambulance sent by Dr. Mani. Shri Sharma
died in the hospital on 11.10.1990 on account of · pyogenic
meningitis'.
9. It is pertinent to mention that after the discharge from
Batra Hospital on 23.6.1990, the deceased wrote a letter on G
26.6.1990 to his employer narrating the agony and the pain he
underwent at the hands of the doctors in Batra Hospital.
10. The deceased, on the suggestion of Dr. Bose,
respondent no.4 visited Modi Hospital on 10.7.1990 where Dr.
~f
696
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A
Bose was a Consulting Surgeon for change of dressing after
17 days. Respondent nos. 2 and 3, namely, Dr. Mani and Dr.
Kapil Kumar visited the residence of the deceased on
14.7.1990 and found him in a bad condition and asked him to
go to AllMS
where he was admitted on 22.7.1990 and
B
treatment was given for pancreatic fistula and chronic fistula.
He was discharged on 26. 7 .1990 with an advice to follow up
in the O.P.D. The deceased again went to Mool Chand
Hospital on 17 .8.1990 with pancreatic and feacal fistula which
was dressed. The deceased was discharged from Mool Chand
c Hospital on 31.8.1990. The deceased went to Jodhpur on
29.9.1990 and on 30.9.1990 he had to be admitted in the
Mahatma Gandhi Hospital at Jodhpur where he was diagnosed
with having post-operative complications of Adrenoloctomy and
Glutteal abscess. The deceased was discharged from there on
D 3.10.1990 with an advice to get further treatment at AllMS and
when the deceased again went to AllMS on 8.10.1990, Dr.
Kuchupillai, a senior doctor at AllMS wrote on a slip 'to be
,discussed in the Endo-Surgical Conference on 8.10.1990'.
11. The appellants after the death of Shri Sharma filed a
E
complaint under section 21 of the Consumer Protection Act,
1986 before the National Commission claiming compensation
attributing deficiency in services and medical negligence in the
treatment of the deceased Shri Sharma.
F
12. The appellants attributed death of Shri Sharma
because of negligence of the doctors and the hospital. The
appellants alleged that the informed consent was completely
lacking in this case. The appellants also alleged that the only
tests done before operation to establish the nature of tumor
were ultrasound and C.T. scan which clearly showed a well
G capsulated tumor of the size 4.5 x 5 cm. in the left adrenal and
the right adrenal was normal.
13. The appellants alleged that the deceased Shri Sharma
had no access whatsoever to any of the hospitals records
H before filing the complaint.
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 697
RESEARCH CENTRE [DALVEER BHANDARI, J.]
14. The appellants also alleged that there was nothing on
A
record to conclusively establish malignancy of the tumor before
the operation was undertaken. The appellants also had the
grievance that they were not told about the possible
complications of the operation. They were told that it was a
small and specific surgery, whereas, the operation lasted for s
six hours. The appellants alleged that pancreatic abscess was
evident as a result of pancreatic injury during surgery. The
appellants further alleged that there was nothing on record to
show that Dr. Kapil Kumar, respondent no. 3 possessed any
kind of experience and skill required to undertake such a c
complicated operation.
15. The appellants also had the grievance that they were
not informed in time of the damage caused to the body of
pancreas and the removal of the spleen.
D
16. According to the appellants, the ·anterior' approach
adopted at the time of first surgery was not the correct
approach. Surgery should have been done by adopting
'posterior' approach for removal of left adrenal tumor. Dr. Kapil
Kumar, respondent no. 3 after the first operation on 2.4.1990 E
told the appellants that the operation was successful and the
tumor was completely removed which was in one piece, well
defined and no spreading was there. After the surgery, blood
was coming out in a tube which was inserted on the left side
of the abdomen. On specific query made by thedeceased and
F
appellant no.1, respondent nos. 2 and 3 told them that the
pancreas was perfectly normal but during operation on
2.4.1990, it was slightly damaged but repaired instantly, hence
there was no cause of any anxiety. When the fact of damage
to pancreas came to the notice of the deceased, he asked for G
the details which were not given. The appellants alleged that
the tumor taken out from the body was not malignant.
17. The complaint of the appellants was thoroughly
examined and dealt with by the National Commission. The
National Commission had decided the entire case of the H
698
SUPREME COURT REPORTS
[2010] 2 S.C.R.
A
appellants in the light of the law which has been crystallized by
a number of cases decided by this Court. Some of them have
been extensively dealt with by the Commission.
18. The allegations in the complaint were strongly rebutted
8
by Dr. Kapil Kumar, respondent no. 3. Dr. Kapil stated in his
affidavit that the anterior approach was preferred over the
posterior approach in the suspected case of cancer, which was
the case of Shri Sharma. The former approach enables the
surgeon to look at liver, the aortae area, the general spread
and the opposite adrenal gland. The risk involved was explained
C to the patient and the appellants and they had agreed to the
surgery after due consultation with the family doctor.
D
E
F
G
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19. With the help of medical texts in support of adopting
·anterior' approach, respondent no. 3 mentioned as under:
"(i) "The ·anterior' approach for adrenalectomy is
mandatory whenever optimum exposure is required or
when exploration of the entire abdomen is necessary.
Therefore, this approach is used in patients with adrenal
tumours >4 cm in diameter, or in patients with possibly
malignant tumours of any size, such as pheochromocytoma
or adrenocortical carcinoma .....
Resection of the left ad!enal gland requires
mobilization of the spleen and left colon. The lateral
peritoneal attachments of the left colon are freed, initially.
Then the spleen is scooped out from the left upper guardant
medially and the avascular attachments between the
spleen and diaphragm are divided. The spleen, stomach,
pancreatic tail and left colon are retracted medially en bloc
to the superior mesenteric vessels. The left adrenal gland
is exposed splendidly in this manner". - Peritoneum,
Retroperitoneum and Mesentery- Section IV.
(ii) "Adrenal operations. Surgery should be initial
treatment for all patients with Cushing syndrome secondary
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 699
RESEARCH CENTRE [DALVEER BHANDARI, J.]
to adrenal adenoma or carcinoma. Preoperative radiologic
A
lateralization of the tumor allows resection via a unilateral
flank incision. Adrenalectomy is curative. Postoperative
steroid replacement therapy is necessary until the
suppressed gland recovers (3-6 months).
Adrenal carcinoma should be approached via a
midline incision to allow radical resection,· since surgery
is only hope for cure". - Principles of Surgery, 18th Edition
Page 560.
B
(iii) "Adrenocortical malignancies are rare, often at
C
advanced stage when first discovered and should be
approached using an anterior approach to allow adequate
exposure of the tumor and surrounding soft tissue and
organs". - Technical Aspects of Adrenalectomy- By Clive
S. Grant and Jon A. Van Heerden - Chapter Thirty Five."
D
20. The medical texts quoted above speak of both the
approaches for adrenaloctomy. Nowhere the appellant no.1 has
been able to support her contention that posterior approach
was the only possible and proper approach and respondent no.
3 was negligent in adopting the anterior approach.
21. Apart from the medical literature, Dr. N. K. Shukla,
Additional Professor at AllMS and a well-know surgeon stated
in unequivocal terms in response to a specific question from
the appellant no.1 that for malignant tumors, by and large, we
prefer anterior approach.
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F
22. Dr. Nandi, Professor and Head of Department of
Gastro-lntestinal Surgery at AllMS also supported ·anterior'
approach and confirmed and reconfirmed adoption of ·anterior'
G
approach in view of inherent advantages of the approach.
23. In view of the medical literature and the evidence of
eminent doctors of AllMS, the National Commission did not find
any merit in the allegations levelled.
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24. According to the appellants, Dr. Bose, respondent no.
4, who performed the second surgery on 23.5.1990 did not
follow the advice of Dr. Nandi, Professor and the Head of
Department of Gastro-lntestinal Surgery at AllMS. Dr. Nandi had
advised placing of feeding tube at a designated place, but this
B was not done.
25. Dr. Bose, Respondent no. 4 stated in his affidavit that
there are three well known alternative methods of food supply
of nutrition minimizing any leakage of enzymes from the
pancreas. Any of the alternative methods could be adopted only
C after opening the stomach and this is precisely what
respondent no. 4 did, i.e. cleared the area of abscess, dead
and other infective tissues and inserted a second tube for
drainage of fluid in the affected area and in the pancreatic duct.
Respondent no. 4 also inserted a second tube connecting the
D exterior of the abdomen with the affected part of the _.pancreas
and the abdomen for drainage and clearance in support of the
first tube inserted for drainage. According to respondent no. 4,
this was the best course which could be done keeping in view
the inside status of the stomach of the deceased and that was
E done.
26. The National Commission did not find any merit in this
complaint of the appellants.
27. Another complaint made by the appellants was with
F regard to 'Gluteal abscess' which was attributed to 'pyogenic
meningitis' resulting in the death of Shri Sharma which was first
observed in the Medical College Hospital at Jodhpur, where
the deceased had gone in connection with performing certain
rites in connection with the death of his mother-in-law. The
G Gluteal abscess was drained by a simple incision. He was
discharged from there on 3. 10. 1990 with an advice to go to
AllMS, New Delhi and meet Dr. Kuchupillai, the
Endoconologist. According to the doctor, there was not even
a whisper of any incision or draining of gluteal abscess. The
·H Essentiality Certificate makes it clear that no incision was
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 701
RESEARCH CENTRE [DALVEER BHANDARI, J.}
made to drain out gluteal abscess.
A
28. The appellants aggrieved by the judgment and order
of the National Commission filed the present appeal before this
court.
29. This court issued notice and in pursuance to the notice
B
issued by this court, a counter affidavit on behalf of respondent
no.1 has been filed by Dr. Ranbir Kumar Gupta. It is mentioned
in the affidavit that although the respondents fully sympathized
with the appellants' unfortunate loss, the respondents are
constrained to submit that the appellants had presented a c
malicious, fabricated and distorted account to create a false
impression that the respondents were guilty ofnegligence in
treating late Shri R.K. Sharma.
30. The respondents also submitted that the appellants
D
have ignored the fact that the medicine is not an exact science
involving precision and every surgical operation involves
uncalculated risks and merely because a complication had
ensued, it does not mean that the hospital or the doctor was
guilty of negligence. A medical practitioner is not expected to
E
achieve success in every case that he treats. The duty of the
Doctor like that of other professional men is to exercise
· reasonable skill and care. The test is the standard of the
ordinary skilled man. It is further submitted in the counter
affidavit that the hospital and the doctors attended late Shri
F
Sharma with utmost care, caution and skill and he was treated
with total devotion and dedication. Shri Sharma'sdeath was
attributable to the serious disease with which hewas suffering
from. It is also mentioned that the conduct of the deceased
himself was negligent when he was dischargedon 23.6.1990.
G
The doctors specifically advised him "Regular Medical Follow
Up" which the deceased failed to attend. In fact, subsequently,
it was respondent no.4 who called upon the deceased and
persuaded him to visit the Modi Hospital for a change of
dressing. The Fitness Certificate issued to the deceased also
bore the endorsement "he would need prolonged and regu\ar
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A
follow up". However, the deceased did not make any effort and
was totally negligent.
31. According to-the affidavit, the deceased was admitted
on 18.3.1990 in Batra Hospital. Dr. R.K. Mani recommended
B certain investigations such as abdominal Utrasound, Echocardiogram Blood Tests etc. On 20.3.1990, Dr. Mani ordered
a- C.T. Scan of the abdomen for a suspected lump in the
abdomen. The C.T. abdomen revealed a large left adrenal
mass. Accordingly, the following note was recorded by Dr. R.K.
Mani in the case sheet on 21.3.1990:-
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D
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"CT abdomen reveals a large left adrenal mass. Evidently
there is a secreting adrenal tumour. Patient needs full work
up re hormonal status and CT Head Scan." The same day
Dr. R.K. Mani referred the case to Dr. C.M. Batra,
Endocrinologist and sought Dr. Batra's opinion on the
diagnosis made by him that Anasrarca was attributable to
the Adrenal tumour. Dr. Mani also referred Shri R.K.
Sharma to a Dermatologist. That after reviewing the case
Dr. C.M. Batra agreed with Dr. Mani that Anarsarca was
due to the Adrenal Tumour. Dr. Batra was also of the
opinion that the A~renal Tumour could be due to either
Adrenal or Adrenal Carcinorμa (i.e. cancer). Dr. Batra
recommended a C.T. Thorax Bone and Skeletol survey.
The Dermatologist Dr. Kandhari reported that Shri R. K.
Sharma had a fungal infection. After the reports of all the
tests and the report of the hormonal assays had been
received, respondent no.2 came to a confirmed diagnosis
that Shri R.K. Sharma had a secreting adrenal tumour. The
patient was informed that surgery for removal of an adrenal
tumour was planned. Appellant no.1 was also informed that
the tumour was suspected to be malignant. Mrs. Kusum
Sharma told respondent no.2 that one of her relations was
a doctor working in Jodhpur Medical College and that she
would like to consult him. The said relation of Smt. Kusum
Sharma came down to Delhi, examined Shri R.K. Sharma
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 703
RESEARCH CENTRE [DALVEER BHANDARI, J.]
and went through all the reports. Thereafter, Smt. Kusum
A
Sharma gave consent for the surgery. Dr. Kapil Kumar, who
specializes in surgical oncology, i.e., cancer surgery was
asked to operate upon Shri R.K. Sharma. The risk involved
in the operation was explained to the petitioner, her
husband (now deceased) and their relative and they
B
agreed after due consultation with their family doctor."
32. Shri Sharma was operated on 2.4.1990 by Dr. Kapil
Kumar, respondent no.3 and the adrenal tumour was removed.
During surgery it became necessary to remove the spleen of C
Shri R.K. Sharma. The operation was successful. However, the
tail of the pancreas was traumatized during retraction as Shri
R.K. Sharma was extremely obese. On examination, the injury
to the pancreas was found to be superficial and non-ductal. The
damage to the pancreas was repaired immediately with
interrupted non-absorbable sutures and drains were placed.
D
The injury to the pancreas was known during surgery and the
same was repaired immediately. It was clearly recorded in the
operation transcript that the body of the pa.ncreas was
damaged on its posterior surface. The said fact was recorded
in the discharge summary.
E
33. It is submitted that after the surgery Shri R.K. Sharma
was· subjected to ultrasound imaging and sonogram. On
26.4.1990 respondent no.2 ordered a CT Scan as he
suspected the existence of a pancreatic abscess. The CT Scan
F
report was suggestive of paripancreatic inflammation and
pancreatic abscess. Thus the CT Scan merely confirmed the
suspicion of appellant no.1, the wife of Shri R.K. Sharma who
was well aware of the injury to the pancreas and the possibility
of there being a pancreatic abscess and she had long
G
discussion with respondent nos.2 and 3 regarding the
prognosis. It is denied that the patient and the appellants were
assured that fluid discharge would stop within 2 or 3 days time
or that it was normal complication after any surgery.
34. It is submitted that the tumour mass was sent for biopsy
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A the same day i.e. 2.4.1990. The histopathology report was
received the next day and it recorded a positive finding of the
tumour being malignant. Since cases of adrenal cancer have
a very poor prognosis, six slides were sent to Sir Ganga Ram
Hospital for confirmation. The histopathology report from Sir
B Ganga Ram Hospital also indicated cancer of the adrenal gland.
35. It is admitted that due to the insistence of the patient
and the appellants to seek expert advice of the All India Institute
of M~dical Science the patient was referred to Sir Ganga Ram
0 Hospital for E.R.C.P. Test. After the CT Scan report dated
26.4.1990 confirmed the existence of pancreatic abscess, on
28.4.1990, respondent nos.2 and 3 sought the advice of Dr.
T.K. Bose, respondent no.4. An E.R.C.P. test and Sonogram
were recommended by respondent no.4 and it was again
respondent no.4 who suggested that the opinion of Prof. Nandi
D of All India Institute of Medical Sciences be sought. E.R.C.P.
and Sonogram are sophisticated tests and the patient can
hardly be expected to be aware of such procedures. It is
submitted that the E.R.C.P. test confirmed the initial diagnosis
made by respondent nos. 2 and 3 that there being a leakage
E from the pancreatic duct and showed the exact site of leakage.
Determination of exact site of leakage is one of the principal
function$ of the E.R.C.P. test.
36. In the counter-affidavit it is specifically denied that the
F deceased was dissatisfied with the treatment. In the affidavit,
it is mentioned that Dr. T.K. Bose and Dr. Kapil Kumar adopted
the procedure, which in their opinion was in the best interest
of the patient, Shri Sharma.
37. During the second operatiori on 23.5.1990 it was found
G that there was matting together of proximal jejunal loops
(intestinal loops) in the left infra-colic compartment subjacent
to root of transverse mescolon and it was technically hazardous
to do feeding jejunostomy. That is why a deviation was made.
Dr. T. K. Bose and Dr. Kapil Kumar were not obliged to follow
H every detail of Pr. Nandi's recommendation as appropriate
KUSUM SHARMA v. BATRA HOSPITAL & MEDICAL 705
RESEARCH CENTRE [DALVEER BHANDARI, J.]
decisions were to be made in accordance with the findings at
A
surgery. It would be pertinent to point out that Dr. Nandi's note
was at best a theoretical analysis whereas Dr. Bose was the
man on the spot. Matting of jejunal loops was not known to Dr.
Nandi and came to be known only on the operation table.
38. It is submitted that the bleeding (hematemsia) was due
to stress ulceration and not due to damage to the stomach by
B
a Nasodudoenal tube. Such bleeding is quite common after
major surgery. It is denied that fundus of the stomach was
damaged during surgery or during placement of the
Nasodudoenal tube as alleged by the appellants. In fact, the site
C
of surgery was nowhere near the fundus of the stomach. It is
denied that any procedure adopted by Dr. Bose and Dr.
Kapil
Kumar in surgery endangered the life of the patient. Shri R.K.
Sharma was discharged as his surgical wounds hadhealed and
his overall condition was satisfactory.
D
39. It is submitted that after his discharge from Batra
Hospital on 23.6.1990, Shri R.K. Sharma did not maintain any
contact with the answering respondents till 9.10.1990 barring
one visit to respondent no.2 on 31.8.1990 for the purpose of
E
obtaining fitness certificate. The answering respondent cannot
be held responsible for any mishap, which might have taken
place when the deceased Shri R. K. Sharma was being treated
elsewhere.
40. It is further submitted that no request was received by
respondent no.1 from AllMS for supply of the case sheets or
f
the tumour mass. Had such a request been received the case
sheets would have been sent to AllMS forthwith. The tumour
mass would also have been sent subject to availability, as
generally the mass is not preserved beyond a period of 4
G
weeks. As a standard practice, case sheets are never given
to patients as they contain sensitive information which can
affect their psyche.
·
41. It is submitted that no malafides can be attributed to
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A the answering respondents for declining the request of Shri R.K.
Sharma for handing over the entire mass of tumour. Had the
mass been available, it would have definitely been given. As
per standard practice, specimens are discarded after one
month and, therefore, the tumour mass was not available and
B as such could not be given to Shri R.K. Sharma. All over the
world the standard practice is to preserve slides and to use
them for review.
42. The Histopathology report from Moel Chand Hospital
C recorded the presence of Mitosis, which are indicative of
malignancy. The Histopathology reports from Batra Hospital and
Sir Ganga Ram Hospital clearly indicated the presence of
malignancy, whereas the report from Moel Chand Hospital did
not specifically indicate whether the tumour was malignant or
benign. Rather it was stated in the report that a follow up was
D required.
43. It is submitted that pyrogenic meningitis was most
probably the consequence of gluteal abscess for which the
patient had not received any proper treatment in the proceeding
E weeks. It was only when the patient was in a critical condition
that he was brought to Batra Hospital. However, at that stage
the disease of the patient was too far advanced.
44. It is denied that pyrogenic Meningitis "is swelling in the
brain due to the spoiled surgery and the unhealed wounds
F inside caused by the repeated insertions of tubes introducing
infections." It is denied that surgery was spoiled at Batra
Hospital. Further when the deceased Shri R.K. Sharma was
discharged, all his wounds had healed. Pyrogenic Meningitis
is not swelling of the brain but inflammation of the covering of
G the brain. It could not have been the consequence of the surgery
or the pancreatic abscess.
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45.