In a complaint based on alleged negligent acts of a surgeon, the apex court held that a surgeon or a doctor cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on.
The said ratio was delivered by the apex court in the judgment of Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumar, Civil Appeal No.3971 of 2011 decided on 01.10.2018.
The appellant in the present case was a doctor by profession and was practicing in Calcutta since 1969. The Respondent No.1 felt pain in her abdomen and consulted the appellant who diagnosed stones in her gall bladder. The appellant performed the laparoscopy and after that open surgery and removed the gall bladder of respondent No.1. Consequently, respondent No.1 filed a consumer complaint under the Consumer Protection Act, 1986 against the appellant claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant as he performed general surgery of her gall bladder when she had given consent for performing laparoscopy surgery only. While the District Forum and the State Commission did not find merit in the complaint, the NCDRC reversed the findings of the lower fora and found the appellant doctor guilty of negligence.
The Supreme Court was posed with 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).
The Supreme Court referred to a
judgment of three judge bench of the same court passed in the matter of Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1] held that a Physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the 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 a person approaching the professional can expect.
The Apex Court clarified that a professional may be held liable for negligence on one of two findings: either he 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 possess. It was further observed that the fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It was held that the standard of care, when 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.