Consumer Law

Why ordinary people should not approach to Indian Courts

How and by which principle, the Court should decide the issue of negligence of a professional doctor-SC Explained it after 22 years of filing the original complaint in favor of the doctor and against the lady patient/ complainant.

Patient`s gall bladder operation went wrong after surgery by the appellant doctor.

It was 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. Supreme Court uses the following tests :

  1. Bolam Test
  2. Eckersley vs. Binnie (1988) 18 Con LR 1
  3. Jacob Mathew vs. State of Punjab [(2005) 6 SCC 1]

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.

CIVIL APPEAL No.3971 OF 2011
Dr. S.K. Jhunjhunwala ….Appellant(s)
Mrs. Dhanwanti Kumar & Anr. …Respondent(s)

Supreme Court Tested the above case on the above principle and held :

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 of a doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient.

In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.

The doctor is not guity    

Case History [1996-2018] 

08.08.1996– the appellant performed the laparoscopy and after that open surgery and
removed the Gall Bladder of respondent No.1

December 1997, respondent No.1 filed a complaint under Section 10 of the Consumer
Protection Act, 1986 against the appellant (opposite party No.1)

19.01.2004 –Order dated 19.01.2004 of the State Commission, West Bengal, Kolkata in Complaint
Case No.698/O/1997

01.09.2009-Final judgment and order dated 01.09.2009 passed by the National Consumer Disputes Redressal Commission.

01.10.2018-Supreme Court decided the case on October 01, 2018

Read the whole Judgment