'Supreme' Relief to Doctors : Doctors are best judges to decide the line of treatment based on their skill, knowledge and experience.

Hon. Apex Court dismissed the charges of negligence against a Senior FRCS Surgeon as he chose conventional surgery over consented laparoscopic surgery to remove  Gall Bladder. 
Nevertheless, a Case emohasisine importance of proper informed consent and proper documentation. 

Case details :

Dr. S.K. Jhunjhunwala V/s. Mrs. Dhanwanti Kumar & Anr. 

Civil Appeal No.3971/2011., decided on 01/10/2018.

CORAM :

Hon. Abhay Manohar Sapre & Hon. Vineet Saran, JJ.

Judgement Link :

https://www.sci.gov.in/supremecourt/2010/17756/17756_2010_Judgement_01-Oct-2018.pdf

Facts in Short :

1. The facts relate back to year 1996. The Respondent - Complainant-patient Mrs. Dhanwantari Kumari , resident of Kolkata had abdominal pain in the month of June-1996. As she did not get any relief from local Doctor, she consulted one Dr. Lakshmi Basu who inturn advised the patient to undergo certain tests like X-Ray, PA test, USG, etc. and after the reports, Dr. Basu opined that  the patient had 2 calculi in her gall bladder which could be removed only by Laparoscopic surgery and asked the patient to approach a good Surgeon. 

2. The Appellant herein after going through the reports and after examining the Patient, advised her for laparoscopic surgery. Accordingly the patient got admitted to Life Line Diagnostic Center and Nursing Home, the Respondent No.2 in the present case.

3. Accordingly on 08/08/1996, firstly laparoscopic surgery was done, but thereafter conventional open surgery also had to be performed for removal of her gall bladder. Within a 10 days the patient was discharged. 

4. However in December 1997 or thereabout, the Patient filed a consumer compliant against Dr. Jhunjhunwala and the said Hospital mainly on the threefold grounda that,

a)  She only gave consent for Laparoscopic Surgery and she never gave consent for the open surgery. Moreover due to said Open surgery, which was not performed with proper care, she suffered great mental and physical pain and agony as the said open surgery resulted in putting several stitches and scars on her body,  

 b) Secondly, even the surgery performed was not   successful   inasmuch   as   she thereafter   suffered   for   several   days   with   various ailments,   such   as   dysentery,   loss   of   appetite, reduction of weight, jaundice etc., 

c)Thirdly, in June 1997,   she   was,   therefore,     required   to   undergo another surgery in Sir Gangaram Hospital, New Delhi for removal of stones which had slipped in CBD. 

Defense of the Doctor :

1. The Appellant Doctor refuted all the allegations. It was submitted on his behalf that proper consent of the patient for performing   the   laparoscopic   cholecystectomy   was duly obtained before performing the surgery. .

2. However during the laparoscopic surgery ,   he   noticed   swelling,   inflammation   and adhesion   on   her   Gall   Bladder   and,   therefore,   he came out of Operation Theater and explained this to her Husband and explained it to him that in such situation instead of Laproscopic surgery conventional opens surgery is the only option to remove her gall bladder and to which the husband gave his consent and accordingly the surgery was performed.

3. Doctor denied all the charges of negligence and he took all precautions to the best of his ability and capacity.

4. The State Commission dismissed the compliant on merit and therefore the Complainant approached National Commission. The National Commission allowed the complainant's appeal and held the Doctor Negligence and saddled compensation of Rs.2 lakhs on him and hence the Doctor approached Hon. Supreme Court.

Held :

 1. Their Lordships allowed the Appeal infavour of the Appellant Doctor after perusing the documents and evidence on record and referred to various judgments on this point.

2. Hon. Court , at the out set discussed the law of  how to decide the negligence of Doctors and placed its reliance on the celebrated judgment of UK Court in the year 1957, in the case of  Bolam V/s. Friern Hospital . In the said case it was held that 

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

3. It also relied on the famous 3 judges bench Supreme Court Judgment  in the case of Jacob Mathew V/s. State of Punjab (2005) 6 SCC 1.  In that case it was held that  a Physician would not assure the patient of full recovery in 

everycase. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to surgery would invariably be beneficial, much less to extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch   of   profession   which   he   is   practicing   and while   undertaking   the   performance   of   the   task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person   approaching   the   professional   can   expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he 14 was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess.  

4. It also relied on another landmark judgment in the case of Hucks V/s. Cole wherein it was observed that “a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgment  in choosing one reasonable  course of treatment   in   preference   of   another.   A   medical practitioner   would   be   held   liable   only   where   his conduct   fell   below   that   of   the   standards   of   a reasonably competent practitioner in his field.” 

5. These principles were applied to the case in the hand. The Court discussed the degrees and experience of the Doctor Jhunjhunwala. He was practicing since 1969 in Kolkata and obtained FRCS from London in the year 1976. Thus he was a well qualified Surgeon and having requisite experience in the filed, the Court further Observed.

6. The Court did not accept the allegation of the patient that she gave consent only for Laparoscopic surgery and not for the Open Surgery. The Court relied upon the terms of consent form itself, which gave every authority to the Appellant Doctor to perform open conventional surgery on the same organ if there would have been some abnormalities and thus the Court held that there was no need for having separate consent as alleged by the Complainant-patient.

7. The Court agreed to the evidence on record which proved that the Doctor chose or shifted to Open surgery as he noticed that there  was   some   inflammation, adhesion and swelling on Gall Bladder and therefor he came out of operation theater and informed respondent's husband and explained him everything and only after her husband gave consent, the conventional surgery was performed. Thus it was not the case of unauthorized act of the Doctor. Moreover, it was the clear case of emergency and it was done to save the life of the patient and there was no time for Doctors to wait till the patient would gain consciousness to take decision on her own, as envisaged in the landmark judgment on Informed Consent in the case of  Samira Kohli V/s. Prabha Manchanda (2008) 2 SCC 1. Most importantly, their Lordships called it as the most natural conduct and behavior of any prudent doctor.

The Hon. Court further observed as it was surprising that the patient never raised the issue of Consent to the Doctor of the Hospital, nor did her husband raise the issue after operation.

8. The Court categorically further observed that even the National Commission has held that the Patient has failed to prove any kind of negligence that can be attributed to the Doctor nor any medical expert opinion has been placed on record in support of her claim. The Court also relied upon the observations of National Commission that the Complainant failed to prove with the help of medical evidence that the stones which were removed in Sir Gangaram Hospital were the same which the Appellant failed to remove.

9. Regarding allegations of subsequent ailments of the patient as a result of the operation, their Lordships held that 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 of a doctor, the medical evidence of experts in field to prove the  latter is required.    Simply  proving  the former is not sufficient. The patient failed to prove the same.

A case of great importance for doctors and perhaps they may call it as oasis. Their Lordships have in detailed discussed various aspects of the case. The Message is loud and clear. The Doctor is the master of his/her decision based on his/her knowledge, experience and skill. Few thins which others can learn from this case is that PROPER CONSENT WAS TAKEN  and PROPER DOCUMENTATION. These two factors have no alternative.

Thanks and Regards,

Adv. Rohit Erande.

Pune.©