Dr. S. K. Jhunjhunwala vs Mrs. Dhanwanti Kaur & Anr.

HELD: 1.1 The appellant is a professionally trained doctor and has acquired the post-graduate degree in the subject (FRCS) from London way back in 1976 and worked there (UK) for seven years and earned enough experience in the field of surgery. It is also not in dispute that since 1976/1977, he has been in the field of surgery in India till the date he performed operation of respondent No.1 on 08.08.1996. These undisputed facts clearly prove that the appellant is a qualified senior doctor with an experience in the field and had also possessed the requisite knowledge and skill in the subject to perform the surgery of Gall Bladder. Initially he proceeded to perform the laparoscopy surgery of the Gall Bladder of respondent No.1 as advised but while so performing he noticed some inflammation, adhesion and swelling on the Gall Bladder and, therefore, decided to perform the conventional surgery, which he actually did on respondent No.1, to remove the Gall Bladder. [Paras 25-27] [878-C-E]

1.2 Clause 4 of the Consent Form empowers the performing doctor to perform such additional operation or procedure including the administration of a blood transfusion or blood plasma as they or he may consider substitute necessary or proper in the event of any emergency or if any anticipated condition is discovered during the course of the operation. In terms of clause

4 of the Consent Form, the appellant was entitled to perform the conventional surgery as a substitute to the former one having noticed some abnormalities at the time of performing Laparoscopy. There was no need to have another Consent Form to do the conventional surgery in the light of authorization contained in clause 4 itself because the substitute operation was of a same organ for which the former one was advised except with a difference of another well known method known in medical subject to get rid of the malady. There is an evidence on record that the appellant having noticed while performing laparoscopy that there was some inflammation, adhesion and swelling on Gall Bladder, he came out of operation theater and informed respondent No.1’s husband who was sitting outside the operation theater about the condition of respondent No.1’s gall bladder and sought his consent to perform the substitute operation. It is only after the consent given by the husband of respondent No.1, the appellant proceeded to do conventional surgery. There is no reason to disbelieve this fact stated by the appellant in his evidence. It is a natural conduct and the behavior of any prudent doctor, who is performing the operation to apprise the attending persons of what he noticed in the patient and then go ahead accordingly to complete the operation. A clear case of grant of consent to the appellant to perform the substituted operation of Gall Bladder of respondent No.1 was, therefore, made out to enable the appellant to perform the conventional surgery, which he actually performed. [Paras 30-34, 36] [879-C-G; 880-A-B]

1.3 Respondent No.1 never raised the objection of “consent issue” to the appellant or/and respondent no.2-Hospital and it was for the first time in the complaint, she raised this issue and made a foundation to claim compensation from the appellant. Nothing prevented her or her husband to raise the issue of consent immediately after performance of the surgery while she was in hospital as an indoor patient and even after discharge that being the natural conduct of any patient. It was, however, not done. It is not in dispute that respondent no.1 failed to prove any specific kind of negligence of the appellant while performing the operation or/and thereafter. Indeed, even the National Commission held this issue in favour of the appellant. [Paras 39, 40] [880-G, H; 881-E]

1.4 Respondent No.1 failed to prove with the aid of any medical evidence that the stones, which were noticed in the second surgery performed after 11 months, were the same stones which the appellant failed to remove from the Gall Bladder. Had it been so, the appellant could be held liable for failure on his part to remove the stones and allowed them to remain in the Gall Bladder for such a long time. There was no medical evidence adduced by respondent No.1 to prove this fact. [Paras 41, 42] [881-D-E, H ; 882-A]

1.5 Respondent No.1 was under legal obligation to prove a specific kind of negligence on the part of the appellant in performing the surgery and also was required to prove that any subsequent ailment which she suffered on her return to home such as, jaundice, dysentery, fever, loss of weight etc. were suffered by her only due to improper performance of conventional surgery by the appellant and if the surgery had been successful, she would not have suffered any kind of these ailments. 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. [Paras 43, 44] [882-B-E]

1.6 Respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital were as a result of faulty surgery performed by the appellant. The impugned order is set aside and that of the order passed by the State Commission is restored. [Paras 45, 50] [882-E-F; 884-C]

Jacob Mathew v. State of Punjab (2005) 6 SCC 1 : [2005] 2 Suppl. SCR 307 – relied on.

Samira Kohli v. Dr. Prabha Manchanda & Anr.

(2008) 2 SCC 1 : [2008] 1 SCR 719 – referred to.

Bolam v. Friern Hospital Management Committee [1957] 1 WLR 582 ; Eckersley v. Binnie (1988) 18 Con LR 1 ; Hucks v. Cole (1968) 118 New LJ 469 – referred to.