India: "A Physician Cannot Assure The Patient Of Full Recovery In Every Case " – Reaffirmed By The Supreme Court

The Bench comprising of Justice Abhay Manohar Sapre and Justice Vineet Saran, in the case titled S.K. Jhunjhunwala v. Dhanwanti Kumar23, reaffirmed the Bolam's Test laid in the case of Bolam v. Friern Hospital Management Committee24.

Facts of the case

The present appeal before the Supreme Court was filed by the Appellant against the final judgment and order dated 01.09.2009, passed by the National Consumer Disputes Redressal Commission (hereinafter referred to as "the National Commission").

In the present case, the appellant was a doctor with expertise in gall bladder surgery and it was alleged by the respondent to have conducted a gall bladder surgery on the respondent without obtaining her consent. Respondent No.1 alleged that she had only given her consent for a Laparoscopic surgery.

Respondent No.1 approached the State Commission alleging negligence on the part of the appellant (doctor). The respondent alleged that she suffered from various ailments which occurred due to the negligence on the part of appellant giving reference to the conventional gall bladder surgery which she had not agreed/consented to. The appellant denied all the allegations of the respondent and stated that he had examined the respondent and accordingly advised her to go for surgery of gall bladder, which may even include removal of the gall bladder. The appellant stated that consent of respondent for performing the laparoscopic cholecystectomy was duly obtained before performing the surgery. The appellant further pleaded that after starting the laparoscopic surgery, he noticed swelling, inflammation and adhesion on respondent's gall bladder and consequently, he came out of the Operation Theater and disclosed the said facts to respondent's husband and told him that in such a situation it would not be possible to perform the laparoscopic surgery and only the conventional procedure of surgery was the option to remove the malady. The husband of respondent agreed for the option suggested by the appellant and the appellant accordingly performed conventional surgery.

Respondent was discharged after spending few days in the hospital for post-operative care. The appellant, therefore, denied any kind of negligence or carelessness or inefficiency on his part in performing the surgery on respondent 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.

After hearing both the parties, the State Commission refused any compensation to the respondent and therefore, the respondent approached the National Commission and the National Commission awarded compensation to the respondent by setting aside the State Commission's order vide order dated 01.09.2009.

Observation made by the Supreme Court

The Supreme Court, on perusal of the facts, evidence and placing reliance on the Bolam's Test reiterated the principle that a "physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on."

The Hon'ble Supreme Court in the present appeal held that the appellant i.e. the doctor was a qualified senior doctor with requisite knowledge and skill to perform the surgery of gall bladder. The said step of conducting the gall bladder surgery while conducting the laparoscopic surgery was taken due to the condition observed while doing the latter. The Court further held that on the occurrence of such an emergent situation, the appellant still took the consent of the respondent's husband by explaining to him the whole situation.

Further, the Court also observed that Clause 4 of the Consent Form which was duly signed by the respondent, empowered the doctor to perform additional operation or procedure in the event of an emergency.

The Court also observed that no medical evidence of any expert was adduced to prove the allegation of negligence by respondent.

Therefore, the Hon'ble Court concluded that the act of the appellant was not an unauthorized act and he could legally perform the said surgery based on Clause 4 of the Consent Form which the respondent had duly signed. Hence, the appeal was allowed by restoring the State Commission's order and setting aside the National Commission's order on finding no merit in that decision.

Footnotes

23 2018 SCC OnLine SC 1721

24 [1957] 1 WLR 582

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