{"file_name": "2024_10_1475_1482_EN.pdf", "text": "[2024] 10 S.C.R. 1475 : 2024 INSC 825\n\nNeeraj Sud and Anr.  \nv. \nJaswinder Singh (Minor) and Anr. \n\n(Civil Appeal No. 272 of 2012)\n\n25 October 2024\n\n[Pamidighantam Sri Narasimha and Pankaj Mithal,* JJ.]\n\nIssue for Consideration\n\nThe NCDRC held appellant-doctor liable for negligence in medical \ntreatment  and  liable  for  payment  of  compensation.  Whether  the \nNCDRC  was  justified  in  holding  doctor  negligent  and  awarding \ncompensation.\n\nHeadnotes†\n\nNegligence  –  Medical  negligence  –  Complainants  are  father \nand son – Son was diagnosed of congenital disorder in his \nleft eye (PTOSIS) for which a minor surgery was performed by \nappellant-doctor – It was alleged that surgery was performed in \na negligent manner and eye further deteriorated post-surgery – \nThe  State  Commission,  upon  examination  of  the  records, \nconcluded  that  the  complainants  failed  to  establish  any \nnegligence or carelessness on part of the doctor – However, \nthe  NCDRC  held  appellant-doctor  liable  for  negligence  in \nmedical treatment and liable for payment of compensation – \nCorrectness:\n\nHeld: It is found that doctor was a competent and a skilled doctor \npossessing requisite qualification to perform PTOSIS surgery and \nto  administer  the  requisite  treatment  and  that  he  had  followed \nthe  accepted  mode  of  practice  in  performing  the  surgery  and \nthat there was no material to establish any overt act or omission \nto  prove  negligence  on  his  part  –  No  evidence  was  adduced  to \nprove  that  he  had  not  exercised  sufficient  care  or  has  failed  to \nexercise  due  skill  in  performing  the  surgery  –  It  is  settled  that \na  professional  may  be  held  liable  for  negligence  if  he  is  not \npossessed of the requisite skill which he supposes to have or has \nfailed  to  exercise  the  same  with  reasonable  competence  –  The \n\n* Author\n\n\f1476 \n\n[2024] 10 S.C.R.\n\ncomplainant has not adduced any evidence to establish that doctor \nor the PGI were guilty of not exercising the expertise or the skill \npossessed  by  them,  so  as  to  hold  them  liable  for  negligence  – \nNo  evidence  was  produced  of  any  expert  body  in  the  medical \nfield  to  prove  that  requisite  skill  possessed  by  doctor  was  not \nexercised  by  him  in  discharge  of  his  duties  –  In  other  words,   \nsimply  for  the  reason  that  the  patient  has  not  responded \nfavourably  to  the  surgery  or  the  treatment  administered  by \na  doctor  or  that  the  surgery  has  failed,  the  doctor  cannot  be \nheld  liable  for  medical  negligence  straightway  by  applying  the \ndoctrine of Res Ipsa Loquitor unless it is established by evidence \nthat  the  doctor  failed  to  exercise  the  due  skill  possessed  by   \nhim in discharging of his duties – Thus, the judgment and order of \nthe NCDRC is hereby set aside and that of the State Commission \nis restored. [Paras 16, 17, 18, 20]\n\nNegligence – Medical Negligence – Actionable negligence – \nThree constituents:\n\nHeld:  It  is  well  recognized  that  actionable  negligence  in  context \nof  medical  profession  involves  three  constituents  (i)  duty  to \nexercise  due  care;  (ii)  breach  of  duty  and  (iii)  consequential \ndamage – However, a simple lack of care, an error of judgment \nor an accident is not sufficient proof of negligence on part of the \nmedical professional so long as the doctor follows the acceptable \npractice of the medical profession in discharge of his duties – He \ncannot  be  held  liable  for  negligence  merely  because  a  better \nalternative treatment or course of treatment was available or that \nmore  skilled  doctors  were  there  who  could  have  administered \nbetter treatment. [Para 14]\n\nNegligence – Medical Negligence – When a medical professional \nmay be held liable for negligence:\n\nHeld: A medical professional may be held liable for negligence only \nwhen he is not possessed with the requisite qualification or skill or \nwhen he fails to exercise reasonable skill which he possesses in \ngiving the treatment – In the instant case, none of the above two \nessential conditions for establishing negligence stand satisfied in \nthe case at hand as no evidence was brought on record to prove \nthat appellant had not exercised due diligence, care or skill which \nhe possessed in operating the patient and giving treatment to him. \n[Para 15]\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1477\n\nCase Law Cited\n\nJacob  Mathews  v.  State  of  Punjab  and Another  [2005]  Supp.  2 \nSCR 307 : 2005 (6) SCC 1 – referred to.\n\nBolam v. Friern Hospital Management Committee (Queen’s Bench \nDivision) English Law (1957) 1 WLR 582 – referred to.\n\nList of Keywords\n\nNegligence; Medical negligence; Eye surgery; Overt act or omission; \nReasonable competence; Res Ipsa Loquitor.\n\nCase Arising From\n\nCIVIL APPELLATE JURISDICTION: Civil Appeal No. 272 of 2012\n\nFrom the Judgment and Order dated 24.08.2011 of the National \nConsumers  Disputes  Redressal  Commission,  New  Delhi  in  FA \nNo. 245 of 2005\n\nWith\n\nCivil Appeal No. 5526 of 2012\n\nAppearances for Parties\n\nRajesh Garg, Sr. Adv., Ms. Neha Matharoo, Mandeep Singh, Mahesh \nKumar,  Sudarshan  Rajan,  Ms.  Srishti  Sharma,  Ramesh  Rawat, \nRohit Bhardwaj, Hitain Bajaj, Ashutosh Gupta, Aryan Ahmed, Amit \nPrasad, Ms. Ruchika Prasad, Ayodhya Prasad, Ms. Chanya Jaitly, \nMayank Kshirsagar, Advs. for the appearing parties.\n\nJudgment / Order of the Supreme Court\n\nJudgment\n\nPankaj Mithal, J.\n\n1.  Heard learned counsel for the parties.\n\n2.  Both the above appeals arise out of the common judgment and order \ndated 24.08.2011 passed by National Consumer Disputes Redressal \nCommission,1  New  Delhi  deciding  First Appeal  No.245/2005  filed \n\n1 \n\nHereinafter referred to as ‘NCDRC’\n\nNeeraj Sud and Anr. v. Jaswinder Singh (Minor) and Anr. \f1478 \n\n[2024] 10 S.C.R.\n\nby the complainants against Dr. Neeraj Sud and the Post Graduate \nInstitute of Medical Education & Research,2 Chandigarh.\n\n3.  The complaint of the complainants i.e. Complaint Case No.29/1998 \nregarding medical negligence against Dr. Neeraj Sud and the PGI \nwas dismissed by the State Commission vide judgment and order \ndated 27.05.2005. Aggrieved by the above decision, the complainants \npreferred appeal before the NCDRC. After remand in the first round, \nthe matter again came up before the NCDRC wherein the present \nimpugned order has been passed and the complaint has been partly \nallowed. The judgment and order of the State Commission dismissing \nthe complaint has been set aside holding that Dr. Neeraj Sud and \nthe PGI are jointly and severely liable for payment of compensation \nof Rs.3,00,000/- and Rs.50,000/- as costs with 6% interest from the \ndate of the complaint for the negligence in treatment.\n\n4.  Dr. Neeraj Sud and the PGI together have filed Civil Appeal No.272 \nof 2012 aggrieved by the finding of NCDRC which states that they \nhad not taken due care in the treatment and as such are liable for \npayment of the compensation and cost as aforesaid. \n\n5.  The other appeal i.e. Civil Appeal No.5526 of 2012 has been filed \nby  the  complainants.  The  complainants  in  the  appeal  have  not \nclaimed any enhancement though upon a reading of the contents, it \nis implicit that they are not satisfied with the compensation awarded \nand that the same is inadequate. The main prayer in appeal is only \nto  grant  the  special  leave  to  petition  against  the  judgment  of  the \nNCDRC but with no other prayer. The relief claimed in the appeal \nby the complainants has been drafted in a very casual and improper \nmanner with no sense of responsibility. We deprecate the manner in \nwhich this appeal has been filed, but in the ends of justice, proceed \nto consider it on merits along with the tagged appeal.\n\n6.  The  complainants  are  father  and  son. The  son  was  a  minor  aged \nabout 6 years when he was diagnosed of congenital disorder in his \nleft  eye  (also  known  as  ‘PTOSIS’  or  ‘drooping  eyelid’)  for  which  a \nminor surgery was performed on 26.06.1996 by Dr. Neeraj Sud at \nPGI. The complainant alleges that there was no other defect in the \neyes of the son and both eyes had normal 6/9 equal vision and the \n\n2 \n\nHereinafter referred to as ‘PGI’\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1479\n\nphysical deformity diagnosed (PTOSIS, drooping eyelid) could have \nbeen  cured  by  a  minor  operation  which  required  lifting  of  the  left \neyelid  a  little  to  make  it  of  the  same  size  as  the  right  eye  but  the \nsaid surgery was done in a most negligent manner. Instead of any \nimprovement the condition of the eye further deteriorated post-surgery.\n\n7.  The  complainants,  thus  through  the  complaint  made  to  the  State \nCommission  claimed  compensation  of  Rs.15,00,000/-  for  the \nsufferings  due  to  negligence  of  the  doctor  and  a  further  sum  of \nRs.4,55,000/- towards the cost of the treatment, loss of studies etc. \nIn defence, Dr. Neeraj Sud and the PGI admitted that the surgery \nwas performed on 26.06.1996 by Dr. Neeraj Sud who is a qualified \npost-graduate in ophthalmology. He had three years of experience in \neye surgeries including surgery of PTOSIS. During the period 1994-\n1996 when Dr. Neeraj Sud was a Senior Resident at PGI, he was \nassociated with about 74 PTOSIS operations. The complainant was \ngiven proper treatment with due care during operation and that the \ncorrection and reoccurrence of PTOSIS is a common complication of \ncongenital ptosis which could have been set right by repeat surgery. \nThe patient was not examined by Dr. Neeraj Sud after January, 1997 \nas he was taken for treatment to Guru Nanak Eye Centre, Delhi and \nDr. Daljit Singh Hospital, Amritsar. \n\n8.  The complainants have not adduced any evidence to establish any \nnegligence in the performance of surgery or treatment on part of Dr. \nNeeraj Sud or the PGI. They mainly relied upon the medical records of \nthe PGI which were obtained and considered by the State Commission. \n\n9.  The State Commission, upon examination of the records, concluded \nthat  the  complainants  failed  to  establish  any  negligence  or \ncarelessness on part of the doctor in treating one of the complainants \nand  that  the  doctor  had  not  adopted  any  unacceptable  medical \npractice which may have caused damage to the patient. Dr. Neeraj \nSud  was  a  duly  qualified  doctor  possessing  requisite  professional \nskill and competence to perform the surgery. Therefore, neither Dr. \nNeeraj Sud nor the PGI can be held responsible for any negligence \nin the treatment. \n\n10.  The  aforesaid  findings  of  the  State  Commission  have  been  partly \nreversed by the NCDRC only on the basis of the re-examination of \nthe record of the PGI which showed that the patient before operation \nhad  proper  6/9  vision  in  both  the  eyes  and  was  suffering  from  a \n\nNeeraj Sud and Anr. v. Jaswinder Singh (Minor) and Anr. \f1480 \n\n[2024] 10 S.C.R.\n\nmoderate PTOSIS with no history of double vision. However, post-\nsurgery, the condition of PTOSIS deteriorated from moderate to severe \nand  the  vision  of  the  patient  also  fell  down  from  6/9  in  both  eyes \nto 6/18. The patient also suffered from double vision post-surgery. \nThus, the NCDRC held that the doctor was apparently negligent in \nnot giving proper treatment and was also careless in not performing \nthe repeat surgery.\n\n11.  Deterioration  of  the  condition  of  the  patient  post-surgery  is  not \nnecessarily  indicative  or  suggestive  of  the  fact  that  the  surgery \nperformed  or  the  treatment  given  to  the  patient  was  not  proper  or \ninappropriate  or  that  there  was  some  negligence  in  administering \nthe same. In case of surgery or such treatment it is not necessary \nthat  in  every  case  the  condition  of  the  patient  would  improve  and \nthe surgery is successful to the satisfaction of the patient. It is very \nmuch possible that in some rare cases complications of such nature \narise but that by itself does not establish any actionable negligence \non part of the medical expert.\n\n12.  The  NCDRC  itself  acknowledged  that  Dr.  Neeraj  Sud  had  the \nnecessary professional qualification and expertise to treat the patient \nbut it has granted compensation only for the reason that he did not \nbring the requisite skill and care in the treatment of the patient. \n\n13.  The said finding is based on no evidence insofar as the complainants \nhave  not  adduced  any  evidence  to  prove  any  negligence  on  part \nof the doctor rather have relied upon the medical records produced \nby the PGI. The said records merely demonstrate that post-surgery \nthe condition of the patient had not improved but has deteriorated \nwhich  as  stated  earlier  may  not  be  indicative  of  the  negligence  in \nthe treatment of the patient.\n\n14. \n\nIt is well recognized that actionable negligence in context of medical \nprofession involves three constituents (i) duty to exercise due care; \n(ii) breach of duty and (iii) consequential damage. However, a simple \nlack  of  care,  an  error  of  judgment  or  an  accident  is  not  sufficient \nproof of negligence on part of the medical professional so long as \nthe doctor follows the acceptable practice of the medical profession \nin discharge of his duties. He cannot be held liable for negligence \nmerely because a better alternative treatment or course of treatment \nwas available or that more skilled doctors were there who could have \nadministered better treatment.\n\nDigital Supreme Court Reports\f[2024] 10 S.C.R.  \n\n1481\n\n15.  A medical professional may be held liable for negligence only when \nhe is not possessed with the requisite qualification or skill or when \nhe fails to exercise reasonable skill which he possesses in giving the \ntreatment. None of the above two essential conditions for establishing \nnegligence stand satisfied in the case at hand as no evidence was \nbrought on record to prove that Dr. Neeraj Sud had not exercised \ndue  diligence,  care  or  skill  which  he  possessed  in  operating  the \npatient and giving treatment to him.\n\n16.  When  reasonable  care,  expected  of  the  medical  professional,  is \nextended  or  rendered  to  the  patient  unless  contrary  is  proved,  it \nwould not be a case for actionable negligence. In a celebrated and \nvery often cited decision in Bolam v. Friern Hospital Management \nCommittee (Queen’s Bench Division),3 it was observed that a doctor \nis  not  negligent  if  he  is  acting  in  accordance  with  the  acceptable \nnorms  of  practice  unless  there  is  evidence  of  a  medical  body  of \nskilled  persons  in  the  field  opining  that  the  accepted  principles/\nprocedure were not followed. The test so laid down popularly came \nto be known as Bolam’s test and stands approved by the Supreme \nCourt in Jacob Mathews v. State of Punjab and Another.4 If we \napply the same in the present case, we would find that Dr. Neeraj \nSood  was  a  competent  and  a  skilled  doctor  possessing  requisite \nqualification  to  perform  PTOSIS  surgery  and  to  administer  the \nrequisite treatment and that he had followed the accepted mode of \npractice  in  performing  the  surgery  and  that  there  was  no  material \nto  establish  any  overt  act  or  omission  to  prove  negligence  on  his \npart. As stated earlier, no evidence was  adduced  to prove that he \nhad not exercised sufficient care or has failed to exercise due skill \nin performing the surgery.\n\n17. \n\nIn Jacob Mathews (supra) this Court held that a professional may \nbe held liable for negligence if he is not possessed of the requisite \nskill which he supposes to have or has failed to exercise the same \nwith reasonable competence. The complainant has not adduced any \nevidence to establish that Dr. Neeraj Sud or the PGI were guilty of not \nexercising the expertise or the skill possessed by them, so as to hold \nthem liable for negligence. No evidence was produced of any expert \n\n3 \n\n4 \n\nEnglish Law (1957) 1 WLR 582\n\n[2005] Supp. 2 SCR 307 : (2005) 6 SCC 1\n\nNeeraj Sud and Anr. v. Jaswinder Singh (Minor) and Anr. \f1482 \n\n[2024] 10 S.C.R.\n\nbody in the medical field to prove that requisite skill possessed by \nDr. Neeraj Sood was not exercised by him in discharge of his duties. \n\n18. \n\nIn  other  words,  simply  for  the  reason  that  the  patient  has  not \nresponded favourably to the surgery or the treatment administered \nby a doctor or that the surgery has failed, the doctor cannot be held \nliable for medical negligence straightway by applying the doctrine of \nRes Ipsa Loquitor unless it is established by evidence that the doctor \nfailed to exercise the due skill possessed by him in discharging of \nhis duties.\n\n19. \n\nIn view of the aforesaid facts and circumstances, we are of the opinion \nthat the NCDRC ought not to have interfered with the findings and \nthe impugned judgment and order of the State Commission so as \nto hold the doctor of the PGI negligent and to award compensation. \n\n20.  Accordingly, the judgment and order dated 24.08.2011 of the NCDRC \nis  hereby  set  aside  and  that  of  the  State  Commission  is  restored. \nSince the complainants have failed to prove any negligence on part \nof the doctor or the PGI, they are not entitled to any compensation \nas such, no question arises for its enhancement.\n\n21.  Accordingly, Civil Appeal No. 272 of 2012 is allowed and  Civil Appeal \n\nNo. 5526 of 2012 is dismissed.\n\nResult of the case: Appeals disposed of.\n\n†Headnotes prepared by: Ankit Gyan\n\nDigital Supreme Court Reports\f"}