It is not medical negligence per se if doctors could not save the patient: Supreme Court

ON April 20, a Supreme Court bench of Justices Ajay Rastogi and Abhay S. Oka in Dr. (Mrs.) Chanda Rani Akhouri & Ors. vs. Dr. M.A. Methusethupathi & Ors., held that the National Consumer Disputes Redressal Commission did not make a manifest error in arriving at a conclusion that there was no negligence committed by the respondents in the post-operative or follow-up care of the patient, Naveen Kant, who did not survive a kidney transplant, on the grounds that not being able to save the patient cannot in itself be considered to be a case of post-operative medical negligence.

The appellant's husband, Naveen Kant, was successfully operated for kidney transplant surgery on November 12, 1995, by a team of doctors, including three of the respondents, at the Aswini Soundra Nursing Home, which is a registered hospital under The Transplantation of Human Organs and Tissues Act, 1994. Unfortunately, the patient succumbed to death on February 3, 1996, after having developed certain complications.

The appellant had first filed a complaint at the Commission on the grounds that timely and adequate medical intervention was absent in the post-transplant care given to the patient, and claimed special/general damages for a sum of Rs. 95,16,174.33. However, the complaint was dismissed on July 29, 2009 based on the evidence on record, which did not suggest a case of medical negligence. The appellant approached the Supreme Court, through the present appeal, against the said judgment of the Commission, under Section 23 of the Consumer Protection Act, 1986.

The Supreme Court in the present case agreed with the Commission's finding that no evidence in support of the appellant's contention had been recorded, except the opinion of some medical experts who were undisputedly not nephrologists, to demonstrate a case of post-operative medical negligence and observed that "doctors are expected to take reasonable care, but no professional can assure that the patient will come back home after overcoming the crisis", while stating that the respondents were qualified medical experts and they extended their best medical assistance available at their command. Notably, the appellant in the present case agreed with the bench that Kant was under treatment by the best medical professionals and qualified nephrologists.

The bench further referred to Jacob Mathew vs. State of Punjab & Anr (2005) on the duty of care of medical professionals and observed in the present case that, "At the relevant time, only assurance given by implication is that he possessed the requisite skills in the branch of the profession and while undertaking the performance of his task, he would exercise his skills to the best of his ability and with reasonable competence. Thus, the liability would only come if:

(a) either a person (doctor) did not possess the requisite skills which he professed to have possessed; or 

(b) he did not exercise with reasonable competence in given case the skill which he did possess. 

It was held to be necessary for every professional to possess the highest level of expertise in that branch in which he practices. It was held that simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of the medical professional."

This court's observations in Jacob on medical negligence can be summarised as, "…So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence."

Further, in Jacob, the Supreme Court had referred to the Bolam test on medical negligence established by the Queen's Bench Division of the High Court of England and Wales in Bolam vs. Friern Hospital Management Committee (1957). In Bolam, the namesake test was described as: "[W] here you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising the professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skills of an ordinary competent man exercising that particular art.

It is also pertinent to rule out the application of 'res ipsa loquitor' (a thing speaks for itself) for determining per se liability of negligence since it has limited application in trial on the charge of criminal negligence, as held by this court in Jacob.

Lastly, the Supreme Court, through its judgments in Kusum Sharma & Ors vs. Batra Hospital & Medical Research Centre & Ors (2010) and Dr. Harish Kumar Khurana vs. Joginder Singh & Ors (2021), explained what would amount to medical negligence and stated in Paragraph 27 of the instant judgment as: "It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standard of a reasonably competent practitioner in his field."

Having found no evidence which would suggest that the conduct of the respondents fell below that of the standards of a reasonably competent practitioner in his field, the Commission's findings were upheld and appeal was accordingly dismissed by the Supreme Court.

Click here to view the Supreme Court's judgment.