Dr. S.K. Jhunjhunwala v. Mrs. Dhanwanti Kumar & Anr,
CIVIL APPEAL No.3971 OF 2011,decided by the
Hon’ble Supreme Court of India on 01.10.2018.
FACTS: In December 1997, respondent No.1 filed a complaint against the appellant (opposite party No.1) and respondent No.2 (opposite party No.2) claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.1996. Respondent No.1, in substance, complained that firstly, she had never given her consent for performing general Surgery of her Gall Bladder rather she had given consent for performing laparoscopy Surgery only but the appellant performed general surgery of her Gall Bladder which resulted in putting several stitches and scars on her body, Secondly, even the surgery performed was not successful inasmuch as respondent No.1 thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc., Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in CBD. It was alleged that all these ailments were incurred due to the negligence of the appellant, who did not perform the surgery properly and rather performed the surgery carelessly leaving behind for respondent No.1 only mental agony, pain, harassment and money loss and hence she filed a complaint to claim the reasonable amount of compensation under various heads as mentioned above.
DEFENCE: The appellant stated in his reply that he, after examining respondent No.1, advised her to go for surgery of Gall Bladder, which may even include removal of Gall Bladder. It was stated that consent of respondent No.1 for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery. The appellant stated that after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to respondent No.1’s husband and told him that in such a situation it would not be possible to perform laparoscopic surgery and only conventional procedure of surgery is the option to remove the malady. The husband of respondent No.1 agreed for the option suggested by the appellant and the appellant accordingly performed conventional surgery. Respondent No.1 was discharged after spending few days in the Hospital for postoperative care. The appellant, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on respondent No.1 and stated that all kinds of precautions to the best of his ability and capacity, which were necessary to perform the surgery were taken by him and by the team of doctors that worked with him in all such operational cases.
IMPUGNED ORDERS: The State Commission, by order dated 19.01.2004, dismissed the complaint filed by respondent No.1 finding no merit therein. National Commission allowed the appeal filed by respondent No.1 in part and awarded a total compensation of Rs.2 lakhs to be paid by the appellant to respondent No.1 on account of negligence on his part in performing the surgery.
OBSERVATIONS: The Question as to how and by which principle,the Court should decide the issue of negligence of a professional doctor and hold him liable for his medical acts/advise given by him/her to his patient which caused him/her some monetary loss, mental and physical harassment, injury and suffering on account of doctor’s medical advise/treatment (oral or operation) is no longer res integra and settled long back by the series of English decisions as well as the decisions of this Court. It is not in dispute that the appellant is a professionally trained doctor and has acquired the postgraduate degree in the subject (FRCS) from London way back in 1976 and worked there (UK) for seven years and earned enough experience in the field of surgery. It is also not in dispute that since 1976/1977, he has been in the field of surgery in India till the date he performed operation of respondent No.1 on 08.08.1996. These undisputed facts, in our opinion, clearly prove that the appellant is a qualified senior doctor with an experience in the field and had also possessed the requisite knowledge and skill in thesubject to perform the surgery of Gall Bladder. It is also not in dispute that initially he proceeded to perform the laparoscopy surgery of the Gall Bladder of respondent No.1 as advised but while so performing he noticed some inflammation, adhesion and swelling on the Gall Bladder and, therefore, decided to perform the conventional surgery, which he actually did on respondent No.1, to remove the Gall Bladder. According to respondent No.1, the appellant could not have done so because she had not given her consent to him to perform this surgery on her. In other words, according to respondent No.1, shehad given her express consent in writing to perform only “laparoscopy surgery” but the appellant instead of performing “laparoscopy surgery” proceeded to perform conventional surgery and in that process removed her Gall Bladder. It is due to this reason, according to respondent No.1, a clear case of negligence on the part of the appellant is made out which entitles respondent No.1 to claim compensation in terms of money.
Clause 4 of the Consent Form dated 07.08.1996 at page 282 of the SLP paper book, which is duly signed by respondent No.1, in clear terms, empowers the performing doctor to perform such additional operation or procedure including the administration of a blood transfusion or blood plasma as they or he may consider substitute necessary or proper in the event of any emergency or if any anticipated condition is discovered during the course of the operation.
In terms of clause 4 of the Consent Form, the appellant was entitled to perform the conventional surgery as a substitute to the formerone having noticed some abnormalities at the time of performing Laparoscopy that it would not be possible for the team of doctors attending respondent No.1 to continue further with laparoscopy of the Gall Bladder.
There is an evidence on record and we are inclined to accept the evidence that the appellant having noticed while performing laparoscopy that there was some inflammation, adhesion and swelling on Gall Bladder, he came out of operation theater and informed respondent No.1’s husband who was sitting outside the operation theater about what the condition of respondent No.1’s gall bladder and sought his consent to perform the substitute operation. It is only after the consent given by the husband of respondent No.1,the appellant proceeded to do conventional surgery. In our opinion, there is no reason to disbelieve this fact stated by the appellant in his evidence. It is, in our opinion, a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation. It is not the case of respondent No.1 that her husband was neither present in the hospital on that day nor he was not sitting outside the Operation Theater and nor he ever met the appellant on that day. In our opinion, a clear case of grant of consent to the appellant to perform the substituted operation of Gall Bladder of respondent No.1 was, therefore, made out to enable the appellant to perform the conventional surgery, which he actually performed. That apart, we also find that respondent No.1never raised the objection of “consent issue” to the appellant or/and opposite party respondent No.2 Hospital and it was for the first time in the complaint, she raised this issue and made a foundation to claim compensation from the appellant. Nothing prevented her or her husband to raise the issue of consent immediately after performance the surgery while she was in hospital as an indoor patient and even after discharge that being the natural conduct of any patient. It was, however, not done.
HELD: In our opinion, no medical evidence of any expert was adduced by respondent No.1 to prove any specific kind of negligence on the part of the appellant in performing the surgery (conventional surgery) of Gall Bladder except raising the issue of “nongiving of express consent.
This issue we have already dealt with above and found no merit therein. In our view, respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever,loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments. In our opinion, there has to be a direct nexus with these two factors to sue a doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence ofdoctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.
In the light of what we have held above, we cannot concur with the reasoning and the conclusion arrived at by the National Commission. As a consequence, the appeal succeeds and is accordingly allowed. The impugned order is set aside and that of the order passed by the State Commission is restored.