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Civil Appeal No. 3541 of 2002. Case: Martin F. D'Souza Vs Mohd. Ishfaq. Supreme Court (India)

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Case NumberCivil Appeal No. 3541 of 2002
CounselFor Appellant: Manu Aggarwal, Manik Karanjawala and Pragya Ohri, Advs and For Respondents: Mala Goel and Asheesh Kumar Mishra, Advs. for Rajinder Mathur, Adv.
JudgesMarkandey Katju and G.S. Singhvi, JJ.
IssueConsumer Protection Act, 1986 - Section 23; Indian Medical Council Act. 1956 - Sections 3, 20(A) and 33; Indian Penal Code - Sections 34, 304(A) and 314; BOLAM Rule; Constitution of India - Article 21; Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002
Citation2009 ACJ 1695 , AIR 2009 SC 2049 , 2009 (2) AWC 1220 (SC) , 2009 (57) BLJR 985 , 2009 (3) BomCR 202 , 2009 BusLR 184 (SC) , (2009) 5 MLJ 510 (SC) , (2009) 154 PLR 1 , RLW 2009 (2) SC 1094 , (2009) 3 SCC 1 , 2009 (2) UJ 794 (SC)
Judgement DateFebruary 17, 2009
CourtSupreme Court (India)

Judgment:

Markandey Katju, J.

  1. This appeal against the judgment of the National Consumer Disputes Redressal Commission, New Delhi dated 22.3.2002 has been filed under Section 23 of the Consumer Protection Act, 1986.

  2. Heard learned Counsel for the parties and perused the record.

  3. The brief facts of the case are narrated below:

  4. In March 1991, the respondent who was suffering from chronic renal failure was referred by the Director, Health Services to the Nanavati Hospital, Mumbai for the purpose of a kidney transplant.

  5. On or about 24.4.1991, the respondent reached Nanavati Hospital, Bombay and was under the treatment of the appellant Doctor. At that stage, the respondent was undergoing haemodialysis twice a week on account of chronic renal failure. Investigations were underway to find a suitable donor. The respondent wanted to be operated by Dr. Sonawala alone who was out of India from 1.6.1991 to 1.7.1991.

  6. On 20.5.1991, the respondent approached the appellant Doctor. At the time, the respondent, who was suffering from high fever, did not want to be admitted to the Hospital despite the advice of the appellant. Hence, a broad spectrum antibiotic was prescribed to him.

  7. From 20.5.1991 to 29.5.1991, the respondent attended the Haemodialysis Unit at Nanavati Hospital on three occasions. At that time, his fever remained between 1010-1040F. The appellant constantly requested the complainant to get admitted to hospital but the respondent refused.

  8. On 29.5.1991 the respondent who had high fever of 1040F finally agreed to get admitted to hospital due to his serious condition.

  9. On 30.5.1991 the respondent was investigated for renal package. The medical report showed high creatinine 13 mg., blood urea 180 mg. The Haemoglobin of the respondent was 4.3%. The following chart indicates the results of the study in comparison to the normal range:

    Normal Range

    S. Creatinine 13.0 mgs. % 0.7 - 1.5 mgs. % 

                    Blood Urea 180 mgs. % 10-50 mgs. %
                
                    Haemoglobin 4.3 gms. % 11.5-13.5 gms. %
    10. On 30.5.1991, the respondent was investigated for typhoid fever, which was negative. He was also investigated for ESR, which was expectedly high in view of renal failure and anemia infection. Urine analysis was also carried out which showed the presence of bacteria

    11. On 3.6.1991, the reports of the urine culture and sensitivity were received. The report showed severe urinary tract infection due to Klebsiella species (1 lac/ml.). The report also showed that the infection could be treated by Amikacin and Methenamine Mandelate and that the infection was resistant to other antibiotics. Methnamine Mandelate cannot be used in patients suffering from renal failure.

  10. On 4.6.1991, the blood culture report of the respondent was received, which showed a serious infection of the blood stream (staphylococcus species).

  11. On 5.6.1991, Amikacin injection was administered to the respondent for three days (from 5th to 7th June, 1991), since the urinary infection of the respondent was sensitive to Amikacin. Cap. Augmentin (375 mg.) was administered three times a day for the blood infection and the respondent was transfused one unit of blood during dialysis. Consequent upon the treatment, the temperature of the respondent rapidly subsided.

  12. From 5.6.1991 to 8.6.1991, the respondent insisted on immediate kidney transplant even though the respondent had advised him that in view of his blood and urine infection no transplant could take place for six weeks.

  13. On 8.6.1991, the respondent, despite the appellant's advice, got himself discharged from Nanavati Hospital. Since the respondent was suffering from blood and urinary infection and had refused to come for haemodialysis on alternate days, the appellant suggested Injection Amikacin (500 mg.) twice a day. Certain other drugs were also specified to be taken under the supervision of the appellant when he visited the Dialysis Unit.

  14. On 11.6.1991, the respondent attended the Haemodialysis Unit and complained to the appellant that he had slight tinnitus (ringing in the ear). The appellant has alleged that he immediately told the respondent to stop taking the Amikacin and Augmentin and scored out the treatment on the discharge card. However, despite express instructions from the appellant, the respondent continued to take Amikacin till 17.6.1991. Thereafter, the appellant was not under the treatment of the appellant.

  15. On 14.6.1991, 18.6.1991 and 20.6.1991 the respondent received haemodialysis at Nanavati Hospital and allegedly did not complain of deafness during this period.

  16. On 25.6.1991, the respondent, on his own accord, was admitted to Prince Aly Khan Hospital, where he was also treated with antibiotics. The complainant allegedly did not complain of deafness during this period and conversed with doctors normally, as is evident from their evidence.

  17. On 30.7.1991, the respondent was operated upon for transplant after he had ceased to be under the treatment of the appellant. On 13.8.1991, the respondent was discharged from Prince Aly Khan Hospital after his transplant. The respondent returned to Delhi on 14.8.1991, after discharge.

  18. On 7.7.1992, the respondent filed a complaint before the National Consumer Disputes Redressal Commission, New Delhi (being Original Petition No. 178 of 1992) claiming compensation of an amount of Rs. 12,00,000/- as his hearing had been affected. The appellant filed his reply stating, inter alia, that there was no material brought on record by the respondent to show any co- relationship between the drugs prescribed and the state of his health. Rejoinder was filed by the respondent.

  19. The National Consumer Disputes Redressal Commission (hereinafter referred to as `the Commission') passed an order on 6.10.1993 directing the nomination of an expert from the All India Institute of Medical Sciences, New Delhi (AIIMS) to examine the complaint and give an opinion. This was done in order to get an unbiased and neutral opinion.

  20. AIIMS nominated Dr. P. Ghosh, and the report of Dr. P. Ghosh of the All India Institute of Medical Sciences was submitted before the Commission, after examining the respondent. Dr. Ghosh was of the opinion that the drug Amikacin was administered by the appellant as a life saving measure and was rightly used. It is submitted by the appellant that the said report further makes it clear that there has been no negligence on the part of the appellant.

  21. Evidence was thereupon led before the Commission. Two affidavits by way of evidence were filed on behalf of the respondent, being that of his wife and himself. The witnesses for the respondent were:

    i) The respondent Mohd. Ishfaq

    ii) The wife of the respondent

    iii) Dr. Ashok Sareen

    iv) Dr. Vindu Amitabh

  22. On behalf of the appellant, six affidavits by way of evidence were filed. These were of the appellant himself, Dr. Danbar (a doctor attached to the Haemodialysis Department of Nanavati Hospital), Dr. Abhijit Joshi (a Resident Senior Houseman of Nanavati Hospital), Mrs. Mukta Kalekar (a Senior sister at Nanavati Hospital), Dr. Sonawala (the Urologist who referred the respondent to the appellant) and Dr. Ashique Ali Rawal (a Urologist attached to Prince Aly Khan Hospital). The witnesses for the appellant were:

    i) The appellant-Dr. M.F. D'Souza

    ii) Dr. Danbar

    iii) Dr. Upadhyay

    iv) Mrs. Mukta Kalekar

    v) Dr. Ashique Ali Rawal

  23. The respondent also filed an opinion of the Chief of Nephrology at Fairview General Hospital, Cleveland, Ohlo, which was heavily relied upon in the impugned judgment. The appellant has alleged that the said opinion was written without examining the respondent and, in any case, the appellant was not afforded an opportunity of cross-examining the person who gave the opinion.

  24. The case of the respondent, in brief, is that the appellant was negligent in prescribing Amikacin to the respondent of 500 mg twice a day for 14 days as such dosage was excessive and caused hearing impairment. It is also the case of the respondent that the infection he was suffering from was not of a nature as to warrant administration of Amikacin to him.

  25. The appellant submitted before the Commission that at the time of admission of the respondent on 29.5.1991 to the hospital, he had fever of 1040F and, after investigation, it was found that his serum creatinine level was 13 mg%, blood urea 180 mg% and Haemoglobin 4.3 mg. Amikacin was prescribed to him only after obtaining blood and urine culture reports on 3rd and 4th June, 1991, which showed the respondent resistant to other antibiotics. Even the witness of the respondent (Dr. Sareen) conceded that he would have prescribed Amikacin in the facts of the case. However, the Commission allowed the complaint of the respondent by way of the impugned order dated 9.4.2002 and awarded Rs. 4 lakh with interest @ 12% from 1.8.1992 as well as Rs. 3 lakh as compensation as well as Rs. 5000/- as costs.

  26. Before discussing the facts of the case, we would like to state the law regarding Medical Negligence in India.

  27. Cases, both civil and criminal as well as in Consumer Fora, are often filed against medical practitioners and hospitals, complaining of medical negligence against doctors/hospitals/nursing homes and hence the latter naturally would like to know about their liability.

  28. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decision of this Court in Jacob Mathew v. State of Punjab and Anr. AIR 2005 SC 3180. However, difficulties arise in the application of those general principles to specific cases.

  29. For instance, in para 41 of the aforesaid decision it was observed:

    The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires.

  30. Now what is reasonable and what is unreasonable is a matter on which even experts may...

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