Suffering of ailments by the patient after open cholecystectomy surgery as development of pain,dyspahgia or reccurrant cbd stone when consent was taken for a laproscopic surgery was taken but no written consent for turning into open was taken does not simply mean medical negligence. In the matter titled as “Dr. S. K. Jhunjhunwala versus Mrs. Dhanwanti Kumar & Anr., the Hon’ble Supreme Court of India vide judgement dated 01.10.2018 has held that simply proving the suffering of ailment by the patient after the surgery does not amount to medical negligence. The doctor can be held for medical negligence only if the suffering of any such ailment is because of improper performance of the surgery and that too with the degree of negligence on the part of the doctor.

            Facts of the case: Mrs. Dhanwanti Kumar (patient) had filed the consumer complaint case claiming compensation for the loss, mental suffering and pain suffered by her throughout after the surgery on account of negligence of the appellant in performing the surgery of her Gall Bladder on 08.08.1996.She complained that firstly she had never given her consent for performing general Surgery of her Gall Bladder rather she had given consent for performing laparoscopy Surgery only but the doctor performed general surgery of her Gall Bladder which resulted in putting several stitches and scars on her body.

           Secondly, even the surgery performed was not successful inasmuch as the patient thereafter suffered for several days with various ailments, such as dysentery, loss of appetite, reduction of weight, jaundice etc.,Thirdly, in June 1997, she was, therefore, required to undergo another Surgery in Ganga Ram Hospital, Delhi for removal of stones which had slipped in CBD. It was alleged that all these ailments were incurred due to the negligence of the doctor, who did not perform the surgery properly and rather performed the surgery carelessly leaving behind for the patient only mental agony, pain, harassment and money loss and hence she filed a complaint to claim the reasonable amount of compensation under various heads as mentioned above.

             Doctor filed his reply and stated in his reply that he, after examining the patient No.1, advised her to go for surgery of Gall Bladder, which may even include removal of Gall Bladder. It was stated that consent of patient for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery.Doctor stated that after starting laparoscopic surgery, he noticed swelling, inflammation and adhesion on her Gall Bladder and, therefore, he came out of the Operation Theater and disclosed these facts to patient's husband and told him that in such a situation it would not be possible to perform laparoscopic surgery and only conventional procedure of surgery is the option to remove the malady. The husband of patient agreed for the option suggested by the doctor and the doctor accordingly performed conventional surgery. The patient was discharged after spending few days in the Hospital for postoperative care.

               Doctor, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on the patient and stated that all kinds of precautions to the best of his ability and capacity, which were necessary to perform the surgery were taken by him and by the team of doctors that worked with him in all such operational cases.

Judgment of the Court

44. In our opinion, 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.

45. In our considered opinion, respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the appellant.

48. In the light of the detailed discussion made above on the issues arising in the case including the issue of grant of consent, we are unable to accept the aforesaid submissions of learned counsel for respondent No.1.

49. It is apt to remember the words of the then Chief Justice of India when he said in Jacob Mathew’s case (supra) which reads as under:

“The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. There is a marked tendency to look for a human actor to blame for an untoward event, a tendency that is closely linked with a desire to punish. Things have gone wrong and therefore somebody must be found to answer for it. An empirical study reveals that background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner, and equally it may not.

         The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor’s contribution is either relatively or completely blameless. The human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against eh operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how the doctor functions in real life.

               The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine. The purpose of holding a professional liable for his act or omission, if negligent, is to make life safer and to eliminate the possibility of recurrence of negligence in future. The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an indepth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.”