1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(s).6507 OF 2009

DR. (MRS.) CHANDA RANI AKHOURI

& ORS. APPELLANT(S)

VERSUS

DR. M.A. METHUSETHUPATHI

& ORS. RESPONDENT(S)

JUDGMENT

Rastogi, J.

1. The sad demise of husband of appellant no.1 after his long

illness on 3

rd February, 1996 has resulted in initiation of the legal

proceedings at the instance of appellant no.1 along with her children

on a bona fide belief that the cause of death of her late husband was

post operative medical negligence and follow-up care.

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2. The National Consumer Disputes Redressal Commission

(hereinafter “the Commission”), after appreciating the material on

record, including the evidence led by the parties, arrived to a

conclusion that it was not a case of post operative medical negligence

as being alleged by the appellants and dismissed the complaint by

the judgment impugned dated 21

st July, 2009 which is the subject

matter of appeal filed at the instance of the appellants under Section

23 of the Consumer Protection Act, 1986.

3. In order to appreciate the issue involved in the instant appeal,

it may be necessary to cull out the facts relevant for the purpose.

Complainant no.1, the widow and complainant nos.2 and 3, the

minor children of deceased Naveen Kant, jointly filed a complaint,

inter alia, alleging that in the first instance in April, 1990, Naveen

Kant developed hypertension and was under the treatment of Dr.P.D.

Gulati, Nephrologist, but when no positive changes had co me

forward, Dr. Gulati advised him for renal transplantation and since

then, Naveen Kant was under regular dialysis at the hospital in Delhi

under the supervision of Dr. Gulati. When some of his well-wishers

informed him about a reputed Nephrologist, Dr. M.A.

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Muthusethupathi, OP No.1 who is performing kidney transplant

surgery at Madras and after going through the entire medical record

and seeking opinion of OP No.1 and after completion of all legal

formalities as being contemplated under the provisions of the

Transplantation of Human Organs and Tissues Act, 1994 (hereinafter

“the Act 1994”) and taking into consideration the fact that dialysis

twice a week may not have been possible for longevity and for better

life span of the patient Naveen Kant, the family took a decision to

undergo for kidney transplantation and on the advice of OP No.1, the

patient Naveen Kant was admitted to OP No.6 (Aswini Soundra

Nursing Home), which is registered under the Act 1994 and a kidney

transplant surgery was successfully performed on 12

th November,

1995 by a team of 12 experts headed by OP Nos.1, 2 and 5, who are

admittedly well qualified and experts with wide knowledge and

experience in their respective fields and after the medical condition

of Naveen Kant was reviewed by OP No.1, he was discharged from OP

No.6 hospital on 24

th November, 1995. It may be relevant to note

that the doctors who had conducted kidney transplant of the patient

have conducted more than 900-1000 renal transplants with good

results, but there are cases where patient died even after successful

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kidney transplant for various reasons which cannot be even under

the control of the doctors.

4. It reveals from the record that despite all post operative medical

treatment and follow up care of the patient under the supervision of

medical experts, still the destiny could not save him and he finally

died on 3

rd February, 1996.

5. The complaint of the appellants was that while Naveen Kant was

discharged from OP No.6 hospital on 24

th November, 1995, he was

asked to attend as an outdoor patient for dressing of the wound at

the place of incision, but his complaint throughout was that while he

was in ICU, he had a pain in his left forearm where intravenous drugs

were injected and at the given time, he was assured that the pain

would subside in due course of time and as and when OP No.1 came

for review, it was the consistent complaint of Naveen Kant of pain in

the left forearm since he was operated and the day he was discharged

on 24

th November, 1995 and within a short period of 7 days on 30

th

November, 1995, OP No.1 noticed the onset of cellulitis in Naveen

Kant’s left forearm and there was a recurrence of abscess at other

points, but still the doctors did not take it seriously and conducted

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investigations into the cause of pain and later on 16

th December,

1995, Naveen Kant developed severe headache coupled with loss of

proper vision in the right eye and also started vomiting. OP No.1

pointed out these problems to the doctor dialysis in-charge of OP

No.6 hospital, who used to administer necessary I.V. injections and

do the dressing.

6. However, on 21

st December, 1995, on the advice of OP No.1,

Naveen Kant was again admitted to OP No.4 hospital and he was

administered anti convulsion injection. Although attended by OP

Nos.1, 3 and 5, headache, fever and pus in his left forearm still

persisted. OP No.5 made a long incision in the left forearm to drain

off the pus, but because OP No.1 was unavailable on 30

th December,

1995, OP No.2 was called upon to take care of the patient.

7. Later, more complications crept in and because of

complications, there developed abscess in pancreas and liver and the

X-ray showed some abnormal developments in the lung and that later

converted into Septicemia. Ultimately, the required potency of

antibiotics administered or the quality of these antibiotics also failed

to respond. He was later moved to ICU on instructions of OP No.3

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and in the morning of 31

st January, 1996, OP No.1 also visited

Naveen Kant, who was at that time in unconscious stage, even after

that, his condition continuously deteriorated and the fact is that no

one attended to the complaint made by Naveen Kant and finally he

could not be saved and left for heavenly abode on 3

rd February, 1996.

This, according to the appellants was the cause of post-operative

negligence and follow up care on the part of the doctors and the

nursing staff of the hospital who had not provided proper medical

care to Naveen Kant and attributed negligence on the part of the

treating doctors and the hospital and claimed special damages/

general damages for a total sum of Rs.95,16,174.33/-.

8. The respondents contested the complaint by filing reply

affidavits, wherein it was stated that respondent No.1 who was a

treating doctor(OP No.1) is a Senior Nephrologist who did M.D.

(General Medicines) at Stanley Medical College in 1968 and after

doing his D.M. in 1977 from PGI Chandigarh, he exclusively worked

and performed kidney transplantation in Government hospitals and

also disclosed his professional skill which he has developed,

particularly in the field of kidney transplantation and so also, the

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other doctors, OP No.2 Dr. S. Shivakumar and OP No.5 Dr. P.S.

Venkateswaran were also the expert doctors in performing kidney

transplantation and have a rich professional experience and as

regards OP No.6 hospital, where kidney transplantation was

performed, it was duly registered hospital under the Act,1994 and is

a fully equipped hospital for transplantation and patient Naveen Kant

after successful surgery of the kidney transplantation and after 12

days in ICU with all medical protocols followed and taking into

consideration his overall health, discharged on 24

th November, 1995.

9. It is further stated that the hospital records for the period 10

th

November to 24

th November, 1995, the sequence of events relating to

the immediate post Transplantation Surgery period revealed that the

surgery was successfully performed on 12

th November, 1995 and

later on 13

th November, 1995, the patient developed low grade fever

for a few hours in the morning and there was no other evidence of

any bacterial infection and Injection Reflin was administered to him

and after all tests were undertaken on 14

th November, 1995, and

taking into consideration the positive response of the patient, he was

discharged on 24

th November, 1995 and till the date of discharge, the

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patient was subjected to periodical and routine visits by the

Specialist Surgeons, Nephrologists and was under a constant

medical observation. The medical observation of the patient as seen

from the case sheet is extracted hereunder:

“Afebre – No Fever.

Lungs clear

CVS S1 S2 – Normal Sound (Cardio Vascular System)

Abdomen – Soft-Mild distention.

NAD – Nothing abnormal detected.

No Oedema – No swelling throughout the body.”

10. On 17

th November 1995, the Urinary catherer tip grew klebsiella

on culture for which Ciprofloracin was started. On 24

th November,

1995, the patient was discharged after remaining under post

operative care for 12 days. Although complaints are made by the

patient of its own kind, but he was always attended and taken care

of and when the patient was called upon to continue to attend as an

outdoor patient, all medical assistance possible at the command of

the respondents was extended to him. It is unfortunate that the

patient could not be saved despite the best medical assistance being

extended to him by the experts of the field.

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11. On behalf of the complainant, evidence was led by Mrs. Vimla

Akhori, relative of appellant no.1, Dr.(Mrs.) Minii Rani Datta, sister

of appellant no.1, Col. Dr. Ashok Chopra, MBBS General Surgery and

Dr.(Mrs.) Sophia Ahmed, as medical experts who are undisputedly

not the Nephrologists. So far as the first two witnesses (relatives of

appellant no.1) are concerned, they have just narrated the statement

of fact which was narrated to them by the appellants being their

relative and both the witnesses Dr. Ashok Chopra and Dr. Sophia

Ahmed was neither expert of kidney transplantation nor a qualified

Nephrologist.

12. So far as the so-called expert evidence adduced by the

appellants before the Commission is concerned, Dr. Ashok Chopra,

who was a Consultant Surgeon in the BSES Global Hospital at

Andheri (West), Mumbai, admittedly passed out his MBBS

examination in the year 1974 and only performed general surgery

during his tenure in the Army and later left the Army and served as

Surgeon in Bareilly and later became a Surgeon in BSES Hospital,

Andheri (West), Mumbai, although stated in his affidavit obviously

based on the case sheet of the patient that the respondents have not

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taken post operative care of the patient and have failed to control and

treat infection that has manifested itself in the form of persistent pain

in the left forearm of the patient at the place where a needle had been

inserted for injection of drugs in the OCU of OP No.6. Timely and

adequate medical intervention was absent in post operative medical

treatment to the patient and also opinion was expressed by him

regarding the drugs administered to the patient and also stated about

the time the patient was discharged after 12 days of his surgery and

rehospitalization of the patient in OP No.4 hospital on 21

st December,

1995 which was not a registered hospital under the Act, 1994 and

the patient should have been admitted in OP No.6 hospital which was

registered where the kidney transplantation was performed and on

this account, OP No.1 has failed to perform his duty towards the

patient by allowing him to be lodged in an unregistered hospital i.e.

OP No.4. Although it has been admitted by him that the operation

was successful, but because of the lackadaisical attitude and post

operative care not being properly administered to the patient, it

created abscess and went into septicemia, which could easily have

been retrieved out of the dangerous infection leading to multi organ

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failure and in this way has expressed his opinion that there was a

post operative negligence on the part of the respondents.

13. The second expert witness appeared on behalf of the appellants

was Dr. Sophia Ahmed. She took MBBS from Patna Medical College

and later did internship in Internal Medicines at Queens Hospital,

Central New York and remained as a resident in Neurology at

University Hospitals and Clinics at USA for almost three years and

has a Fellowship in Clinical Neurophysiology and Epilepsy. With no

expert knowledge of the subject based on the medical reports made

a statement of a medical negligence being performed by the

respondents and expressed her opinion that in the post transplant

phase, patient manifested clear symptoms of infection while in the

ICU and the patient was not recovered adequately for nosocomial

infection and his manifest problems and indicators were not

addressed by the attending doctors with seriousness and urgency

and at critical junctures, the retained nephrologist displayed

complete lack of professional concern for the patient and this

according to her was a post operative medical negligence being

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committed by the res pondents and only because of their

lackadaisical attitude, they lost their patient.

14. On the other hand, the respondents who indeed were

themselves qualified Nephrologists and experts in the field of kidney

transplant operations and this fact is not disputed by the appellants

as well in support thereof have produced two expert witnesses, Dr.

S. Sundar and Dr. Arun Kumar, who are qualified Nephrologists.

15. Dr. S. Sundar, Director and Chief Nephrologist of Karnataka

Nephrology and Transplant Institute, Bangalore stated that out of his

long experience in having performed more than thousand kidney

transplantation surgeries in the past 22 years and based on the

evidence of literature relating to kidney transplantation, increase in

total count (leucocytes) is a common phenomenon in most of the

renal transplant recipients, who ha ve been administrated

Corticosteroids. Sometimes, rise in total counts does not per se mean

infection but there is no reason to conclude that the patient ought

not to have been discharged after 12

th day of surgery. It is also stated

that leucocyte count will not rise in the post transplant period in

absence of any infection that only proves lack of experience and

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medical knowledge of renal transplant. The witness has further

stated that on 30

th November 1995, when the patient was diagnosed

cellulitis/abscess, injection Reflin was administered by OP No.1

which was the best medicine for cellulitis and it is a common practice

to use this drug in such a situation. It was further stated by him

that medical science is not an exact science like mathematics and in

medical science experience of doctor treating the patient is

important. It has been further averred by him that most transplant

patients having fever are treated with drugs like Amikacin and

Ciprofloxacin to cover a broader spectrum of organisms in the

absence of definitive evidence of organism causing fever. It has been

further stated by him that in the field of kidney transplantation and

Nephrology, it is very difficult to diagnose and manage any infection

in a Kidney Transplant patient and the reasons are many. These

are:

(a) Cultures of body fluids (blood, urine, pus, etc.) are often

negative.

(b) Even if an organism is isolated, it is not always possible to be

certain that the particular organism is the actual cause of fever.

(c) Many of the antibiotics have deleterious effects on the

transplanted kidney, thereby necessitating great care in drug

selection and dosage.

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(d) Un-related donor transplantation need more immune -

suppression for the kidney to survive and therefore is more prone to

infection.

16. Dr. Arun Kumar, who was also produced on behalf of the

respondents, was also a Professor of Surgery, Head of the

Department of Surgery, Coimbatore Medical College, Tamil Nadu also

stated in his affidavit that he has been a kidney transplant surgeon

since 1986 and has performed over 1140 renal transplantations. In

clinical practice, positive findings, if any, are always noted in the case

records and after going through the record history of the patient, it

was stated by him that he did not find any evidence of infection at

the time of discharge of the patient from OP No.6.

17. The Commission, after taking into consideration the pleadings

so also the evidence on record arrived to a conclusion that the patient

Naveen Kant was under the hands of the expert team of doctors and

possible medical care at the command of the doctors was fully

administered to him and after being discharged from the hospital on

24

th November, 1995, still thereafter he was continued to be under

treatment and merely because the expert team of doctors could not

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save him after his prolonged illness and he died on 3

rd February,

1996 that in itself could not be considered to be a case of post

operative medical negligence and in consequence thereto dismissed

the complaint filed at the instance of the appellants under judgment

impugned dated 21

st July, 2009.

18. It is not disputed by counsel for the appellants that the kidney

transplantation of the patient on 12

th November, 1995 was successful

and they had complained but the complaint is only in reference to

post operational medical negligence as the respondents have failed to

discharge their statutory duty of care and medical protocols

subsumed thereunder, including follow up care and that according

to the appellants is a medical negligence on the part of the

respondents in extending treatment to the patient Naveen Kant and

being the case of post operative negligence, they have lost their

patient on 3

rd February, 1996.

19. Counsel for the appellants further submitted that the patient

was consistently complaining after he being successfully operated on

12

th November, 1995 and shifted to the ICU for pain in the left

forearm where intravenous drugs were injected to him and when the

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patient was attended by OP No.1 for review, he reiterated his

complaint of pain in the left forearm and still he was discharged from

the hospital on 24

th November, 1995. Later, the patient noticed the

onset of cellulitis and recurrence of abscess being at other points,

still the doctors have not taken his complaint seriously and

conducted investigations into the cause of pain and later he

developed severe headache, coupled with loss of proper vision in the

right eye and started vomiting. These facts can be supported by the

prescription chart of the patient and that was the reason for which

the patient was again admitted in the hospital of OP No.4 on 21

st

December, 1995 and fever and pus in his left forearm still persisted.

At that stage, OP No.5 made a long incision in the left forearm to

drain out the pus, but since OP No.1 was not available, his condition

deteriorated and finally left for heavenly abode on 3

rd February, 1996

and this fact has been established from the evidence placed on record

of the complainant and other witnesses including the two doctors,

who as an expert appeared and recorded a deposition in support of

kind of post operative medical negligence committed by the

respondents. The Commission, according to the counsel, although

noticed these facts but has not at all appreciated the evidence on

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record and thus, after reproduction of the facts adduced by the

parties, dismissed the complaint in a cavalier manner under the

impugned judgment dated 21

st July, 2009, which needs to be

revisited by this Court at least to examine as to whether it was a case

of post operative medical negligence, the reason for which appellant

no.1 has lost her husband.

20. Per contra, counsel for the respondents, while supporting the

findings recorded by the Commission under the impugned judgment,

submits that it is not the case of the appellants that there was any

slackness on the part of the team of the doctors while the patient was

being operated/underwent kidney transplant on 12

th November,

1995 which was admittedly successfully performed by the qualified

team of doctors headed by OP No.1 and OP No.5 and thereafter the

patient was shifted to ICU for post operative treatment and even

thereafter he was completely under medical supervision and got

discharged on 24

th November, 1995 with further instructions that he

should remain as an outdoor patient until the doctors advise him to

leave the city and the reason was that as an outdoor patient, dressing

of wounds at the place of incision is always to be taken proper care.

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So far as the complaint of pain in the left forearm is concerned, these

are some complaints which the patients normally make but it is

always taken care of and the time heals complaints of the patient,

but still all medical assistance which was possible under the

command of the qualified doctors was extended to him. It is true

that unfortunately, appellant no.1 has lost her husband but this all

is destiny.

21. The doctors can provide their best medical assistance available

at their command but merely because they could not save the

patient, that could not be considered to be a case of post operative

medical negligence despite the fact that medical protocol

administered by them was duly supported by the two medical experts

of the field who appeared on behalf of the respondents, Dr. S. Sundar

and Dr. Arun Kumar, and nothing elicits from the cross-examination

made by the appellants. In the given circumstances, the findings

which has been returned by the Commission needs no further

interference by this Court.

22. We have heard learned counsel for both the parties and with

their assistance perused the material placed on record. In order to

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appreciate the opinion of the Commission, it will be apposite to take

note of the legal principles which would apply in the case of medical

negligence.

23. In the case of medical negligence, this Court in Jacob Mathew

v. State of Punjab and Another

1 dealt with the law of medical

negligence in respect of professionals professing some special skills.

Thus, any individual approaching such a skilled person would have

a reasonable expectation under the duty of care and caution but

there could be no assurance of the result. No doctor would assure

a full recovery in every case. At the relevant time, only assurance

given by implication is that he possessed the requisite skills in the

branch of the profession and while undertaking the performance of

his task, he would exercise his skills to the best of his ability and

with reasonable competence. Thus, the liability would only come if

(a) either a person (doctor) did not possess the requisite skills which

he professed to have possessed; or (b) he did not exercise with

reasonable competence in given case the skill which he did possess.

It was held to be necessary for every professional to possess the

1

(2005) 6 SCC 1

20

highest level of expertise in that branch in which he practices. It

was held that simple lack of care, an error of judgment or an accident,

is not proof of negligence on the part of the medical professional. This

Court held as under:

“48. We sum up our conclusions as under:

(1) Negligence is the breach of a duty caused by omission to do

something which a reasonable man guided by those considerations

which ordinarily regulate the conduct of human affairs would do, or

doing something which a prudent and reasonable man would not

do. The definition of negligence as given in Law of Torts, Ratanlal &

Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove,

holds good. Negligence becomes actionable on account of injury

resulting from the act or omission amounting to negligence

attributable to the person sued. The essential components of

negligence are three: “duty”, “breach” and “resulting damage”.

(2) Negligence in the context of the medical profession necessarily

calls for a treatment with a difference. To infer rashness or

negligence on the part of a professional, in particular a doctor,

additional considerations apply. A case of occupational negligence

is different from one of professional negligence. A simple lack of care,

an error of judgment or an accident, is not proof of negligence on the

part of a medical professional. So long as a doctor follows a practice

acceptable to the medical profession of that day, he cannot be held

liable for negligence merely because a better alternative course or

method of treatment was also available or simply because a more

skilled doctor would not have chosen to follow or resort to that

practice or procedure which the accused followed. When it comes to

the failure of taking precautions, what has to be seen is whether

those precautions were taken which the ordinary experience of men

has found to be sufficient; a failure to use special or extraordinary

precautions which might have prevented the particular happening

cannot be the standard for judging the alleged negligence. So also,

the standard of care, while 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. Similarly, when the charge of negligence

arises out of failure to use some particular equipment, the charge

would fail if the equipment was not generally available at that

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particular time (that is, the time of the incident) at which it is

suggested it should have been used.

xxx xxx xxx

(4) The test for determining medical negligence as laid down

in Bolam case [(1957) 2 All ER 118 (QBD), WLR at p. 586] holds good

in its applicability in India.

xxx xxx xxx

(8) Res ipsa loquitur is only a rule of evidence and operates in the

domain of civil law, specially in cases of torts and helps in

determining the onus of proof in actions relating to negligence. It

cannot be pressed in service for determining per se the liability for

negligence within the domain of criminal law. Res ipsa loquitur has,

if at all, a limited application in trial on a charge of criminal

negligence.”

24. The term “negligence” has been defined in Halsbury Laws of

England (Fourth Edition) para 34 and as settled in Kusum Sharma

and Others v. Batra Hospital and Medical Research Centre and

Others

2 as under:

“45. According to Halsbury's Laws of England, 4th Edn., Vol. 26 pp.

17-18, the definition of negligence is as under:

“22. Negligence.—Duties owed to patient. A person who holds

himself out as ready to give medical advice or treatment

impliedly undertakes that he is possessed of skill and

knowledge for the purpose. Such a person, whether he is a

registered medical practitioner or not, who is consulted by a

patient, owes him certain duties, namely, a duty of care in

deciding whether to undertake the case; a duty of care in

deciding what treatment to give; and a duty of care in his

administration of that treatment. A breach of any of these

duties will support an action for negligence by the patient.”

2

(2010) 3 SCC 480

22

25. In para 89 of the judgment in Kusum Sharma (supra), the tests

of medical negligence while deciding whether the medical

professional is guilty of medical negligence, varied tested principles

have to be kept in view, this Court held as under:

“89. On scrutiny of the leading cases of medical negligence both in

our country and other countries specially the United Kingdom, some

basic principles emerge in dealing with the cases of medical

negligence. While deciding whether the medical professional is guilty

of medical negligence following well-known principles must be kept

in view:

I. Negligence is the breach of a duty exercised by omission to do

something which a reasonable man, guided by those considerations

which ordinarily regulate the conduct of human affairs, would do, or

doing something which a prudent and reasonable man would not do.

II. Negligence is an essential ingredient of the offence. The

negligence to be established by the prosecution must be culpable or

gross and not the negligence merely based upon an error of

judgment.

III. The medical professional is expected to bring 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 judged in the light of the particular circumstances of

each case is what the law requires.

IV. A medical practitioner would be liable only where his conduct

fell below that of the standards of a reasonably competent

practitioner in his field.

V. In the realm of diagnosis and treatment there is scope for

genuine difference of opinion and one professional doctor is clearly

not negligent merely because his conclusion differs from that of other

professional doctor.

VI. The medical professional is often called upon to adopt a

procedure which involves higher element of risk, but which he

honestly believes as providing greater chances of success for the

patient rather than a procedure involving lesser risk but higher

chances of failure. Just because a professional looking to the gravity

of illness has taken higher element of risk to redeem the patient out

of his/her suffering which did not yield the desired result may not

amount to negligence.

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VII. Negligence cannot be attributed to a doctor so long as he

performs his duties with reasonable skill and competence. Merely

because the doctor chooses one course of action in preference to the

other one available, he would not be liable if the course of action

chosen by him was acceptable to the medical profession.

VIII. It would not be conducive to the efficiency of the medical

profession if no doctor could administer medicine without a halter

round his neck.

IX. It is our bounden duty and obligation of the civil society to

ensure that the medical professionals are not unnecessarily harassed

or humiliated so that they can perform their professional duties

without fear and apprehension.

X. The medical practitioners at times also have to be saved from

such a class of complainants who use criminal process as a tool for

pressurising the medical professionals/hospitals, particularly

private hospitals or clinics for extracting uncalled for compensation.

Such malicious proceedings deserve to be discarded against the

medical practitioners.

XI. The medical professionals are entitled to get protection so long

as they perform their duties with reasonable skill and competence

and in the interest of the patients. The interest and welfare of the

patients have to be paramount for the medical professionals.”

26. In a recent judgment in Dr. Harish Kumar Khurana v.

Joginder Singh and Others

3 , this Court held that the hospital and

doctors are required to exercise sufficient care in treating the

patients in all circumstances. However, in an unfortunate case

death may occur. It will be necessary that sufficient material on

medical evidence should be available before the adjudicating

authority to arrive at a conclusion that the death is due to medical

3

(2021) 10 SCC 291

24

negligence. Even death of a patient cannot, on the face of it, be

considered to be medical negligence.

27. It clearly emerges from the exposition of law that a medical

practitioner is not to 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 to another. In the practice of medicine, there could be

varying approaches of treatment. There could be a genuine

difference of opinion. However, while adopting a course of treatment,

the duty cast upon the medical practitioner is that he must ensure

that the medical protocol being followed by him is to the best of his

skill and with competence at his command. At the given time,

medical practitioner would be liable only where his conduct fell

below that of the standards of a reasonably competent practitioner

in his field.

28. The term “negligence” has no defined boundaries and if any

medical negligence is there, whether it is pre or post-operative

medical care or in the follow-up care, at any point of time by the

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treating doctors or anyone else, it is always open to be considered by

the Courts/Commission taking note of the exposition of law laid

down by this Court of which a detailed reference has been made and

each case has to be examined on its own merits in accordance with

law.

29. Adverting to the facts of the instant case, the treating doctors,

OP Nos.1, 2 and 5 all are academically sound and experts in the field

of kidney transplantation. Respondent nos.1, 2 and 5 had disclosed

their qualifications of which a detailed discussion is not required and

their medical expertise in the field of nephrology and surgery in

kidney transplantation has not been doubted by the appellants. It

is also not the case of the appellants that the patient was not

medically treated by the well-qualified doctors at the time when

kidney transplant surgery was undertaken on 12

th November, 1995

by the team of doctors including OP Nos.1, 2 and 5 in the OP No.6

hospital which is a registered hospital under the Act 1994.

30. Complaints have been made with regard to the post-operative

assistance / follow up care, but from the deposition of two witnesses

which has come on record, there was a complaint made by the patient

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of pain in his left forearm while he was being discharged on 24

th

November, 1995 after remaining in ICU for 12 days, but he was called

upon to continue as outdoor patient and on all the later occasions,

even as per the case sheet of the patient, doctors have treated the

patient to the best of their medical knowledge and administered the

best medical care which was possible. Although the complaint of the

patient which remained persistent could not be ruled out despite

medically approved drugs being administered to him and if the

patient could not be finally saved, that in itself could not be

considered to be a case of post operative medical negligence, as is

being tried to be projected by the appellants on the basis of the

material placed on record.

31. The doctors are expected to take reasonable care, but no

professional can assure that the patient will come back home after

overcoming the crisis. At the same time, no evidence has come on

record at the behest of the appellants which, in any manner, could

demonstrate that it was a case of post-operative medical negligence

or follow up care on the part of treating doctors and both the doctors

who have recorded their statements on behalf of the appellants, Dr.

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Ashok Chopra and Dr. Sophia Ahmed, are not expert doctors in the

field of kidney transplantation. Merely because they are doctors by

profession, what is being expressed by both of them in the affidavits

filed before the Commission would not be considered to be an opinion

of experts.

32. On the contrary, the two experts who have deposed on behalf of

the respondents, Dr. S. Sundar and Dr. Arun Kumar are admittedly

experts of the field. At the same time, the respondents – OP Nos.1,

2 and 5 are indeed expert doctors and qualified Nephrologists and

this fact has been admitted by the appellants that the patient was

under treatment of the best medical professionals and qualified

Nephrologists, but those treating doctors could not save the patient

Naveen Kant, that in itself could not be considered to be a case of

post operative medical negligence which was the main grievance of

the appellants before the Commission.

33. After going through the findings which have been returned by

the Commission in the order impugned, we see no reason to differ

with the view expressed by the Commission keeping in mind the tests

enunciated above. Taking note of the fact that treating doctors, OP

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Nos.1, 2 and 5 are medical experts in the field of nephrology and so

far as OP No.6 hospital where the patient was admitted for

transplantation was duly registered under the Act, 1994 and all post

operative medical care protocol available at the command of the

respondents was administered to the patient, still his physical

condition deteriorated and finally he could not be saved, which is

really unfortunate, but there cannot be a legal recourse to what is

being acceptable to the destiny.

34. In our opinion, the Commission has not committed any

manifest error in arriving to a conclusion that in post operative

medical negligence or follow up care, there was no negligence being

committed by the respondents which may be a foundation for

entertaining the complaint filed by the appellants. In consequence

thereof, the judgment of the Commission does not call for any

interference by this Court.

35. Counsel for the appellants submitted that the nursing

home/hospital where the patient was admitted for post -operative

care, was not registered under the provisions of the Act 1994. With

the assistance of the counsel for the parties, we have gone through

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the Scheme of the Act 1994 and the Rules made thereunder. The

hospitals where the procedure of transplantation is undertaken are

to be registered in terms of Section 14 of the Act 1994, but for post-

operative care, particularly after the patient being discharged from

the hospital where the procedure of transplantation has taken place,

we have not come across any provision under the Act, 1994 where

such hospitals are required to be registered under the Act 1994.

36. Before parting, we would like to observe that when the matter

was finally heard and concluded, appellant no.1 was present in Court

and we made a request as to whether she is still interested to get the

final judicial verdict on the issue which has been raised at her

instance at one stage by instituting a complaint before the

Commission. The appellant made a very candid statement before the

Court that she wants now to sum up the matter and what she has

lost is, in no manner, recoverable and compensation even if awarded

by this Court is not going to be of any solace to her at this point of

time. We realize the pain of losing her husband and the trauma she

has suffered, but that cannot translate into a legal remedy.

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37. Accordingly, we do not find any fault in the reasoning of the

Commission, as a result, the appeal is without substance and

deserves to be dismissed.

38. The appeal is accordingly dismissed. No costs.

39. All pending application(s) shall stand disposed of.

…………………… ……….. J.

(AJAY RASTOGI)

…………………………….. J.

(ABHAY S. OKA)

New Delhi.

April 20, 2022.