Doctors not liable for outcome of surgery

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The Supreme Court of India recently held that a surgeon or a doctor cannot guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.

In Dr SK Jhunjhunwala v Mrs Dhanwanti Kumar, the appellant, Dr Jhunjhunwala, a doctor by profession had been practising medicine in Calcutta since 1969. In 1996, the complainant felt a pain in her abdomen and consulted the doctor who diagnosed stones in her gall bladder and then performed a laparoscopy and open surgery to remove her gall bladder. Subsequently, the complainant filed a complaint under the Consumer Protection Act, 1986, against the doctor claiming compensation for loss, mental suffering and pain suffered by her after the surgery. The complaint was that the doctor had been negligent because he performed general surgery on her gall bladder but she had only given consent to have the laparoscopy surgery. While the District Consumer Forum and the State Commission did not find merit in the complaint, the National Consumer Disputes Redressal Commission, New Delhi reversed the findings and found the doctor guilty of medical negligence and awarded compensation of ₹200,000 (US$2700).

The Supreme Court was confronted with the legal question as to how and by which principle, the court should decide on the issue of negligence of a doctor and hold him liable for medical negligence.

The court, while allowing the appeal, held that a professional may be held liable for negligence on one of two findings: either they did not possess the requisite skills that they claimed to have, or they did not exercise, with reasonable competence in the given case, the skill which they did possess. The fact that a defendant charged with negligence acted in accordance with the general and approved practice is enough to clear him of the charge. On the issue of consent, the court held that where an additional procedure, though unauthorized, is necessary in order to save the life or preserve the health of the patient, it would be unreasonable to delay such unauthorized procedure until the patient regains consciousness and makes a decision.

While referring to earlier judgments, the court held that the human body and its working is nothing less than a highly complex machine and a physician would not assure the patient of full recovery in every case. The only assurance that 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 they are practising and while undertaking the performance of the task entrusted to them, they would be exercising their skill with reasonable competence.

The dispute digest is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at lbhasin@bhasinco.in or lbhasin@gmail.com. Readers should not act on the basis of this information without seeking professional legal advice.