KUSUM SHARMA v.

BATRA HOSPITAL & Othrs.AIR 2010 SC 1050

P ROLOGUE T O T HE C ASE

It is said that medicine is not an exact science. Every surgical operation

involves uncalculated risks and merely because a complication had ensued,

it does not mean that the hospital or medical practitioner was guilty of

negligence. A medical practitioner is not expected to achieve success in

every case that he treats. He cannot be made liable for medical negligence

merely because there has been error of judgment in rendering a particular

medical treatment. At the same time, it is imperative that medical

practitioner must bring to his task a reasonable degree of skill and

knowledge, and must exercise a reasonable degree of care because patient

is at his mercy. When medical practitioner fails to exercise reasonable

degree of care in treating a patient he can be made liable for medical

negligence. However the skills of medical practitioners and standard of care

required differs in each case and hence it becomes extremely difficult to

determine whether a particular case falls within the purview of medical

negligence or not.

The issue as to what amounts to medical negligence and when can a doctor

be said to be negligent and the standard of care that a doctor is expected to

meet in his practice has been the topic of a number of landmark judgments

of the Judiciary. In the present case Hon’ble Supreme Court has made

sincere attempt to settle the law relating to Medical Negligence and answer

all the aforesaid questions.

H ISTORICAL B ACKGROUND : T HE L AW O F M EDICAL N EGLIGENCE a s I T E XISTED

B EFORE T HIS C ASE

Indian Judiciary was confronted with the issue of medical negligence soon

after its establishments. However taking into consideration the complication

involved in medical law it became extremely difficult to deal with the cases

of medical negligence.

The Supreme Court tried to settle the law related to medical negligence by

applying Bolam Test1 laid down in English Case. Bolam Test remained a

barometer for measuring medical negligence for numerous years and it was

duly applied by Supreme Court. Bolam Test lays down the principles which

are required to be followed in order to prove medical negligence. Firstly, a

professional man should command the corpus of knowledge which forms

part of the professional equipment of the ordinary members of his

profession. Secondly, he should not lack behind other ordinary assiduous and

intelligent members of his profession in knowledge of new advances,

discoveries and development in his fields. Thirdly, he should have such

awareness as an ordinarily competent practitioner would have of the

deficiency in his knowledge and limitations on his skills. Fourthly, he should

be alert to the hazards and risks in any professional task he undertakes to

the extent that other ordinarily competent members of the profession would

be alert. This test continued to remain rule of law of medical negligence for

many decades.

Finally in the ear 2005 in case of Jacob Matthew v. State of Punjab2 Hon’ble

Supreme Court gave its own guidelines to determine the cases of medical

negligence. In the said case Hon’ble Supreme Court laid down three

guidelines that shall be taken into consideration while deciding the cases of

medical negligence. However these guidelines were not exhaustive in

nature. Hence a need evolved to reconsider the law of medical negligence

from every aspect.

1 Bolam v. Friern Hospital Management Committee, (1957) 2 All ER2 Jacob Matthew v. State of Punjab, (2005) 6 SCC 1

F ACTS O F T HE C ASE

Late R. K. Sharma, a Senior Operation Manager with Indian Oil Corporation,

developed high blood pressure and complained of swelling and

breathlessness in the year 1989. His case was referred to Batra Hospital at

the behest of Indian Oil Corporation, the employer. 

Amongst various tests, Ultrasound and C.T. Scan, it was diagnosed that

patient was suffering from abdominal tumor. The tumor was found to

malignant. However the treatment of malignancy has man side effects hence

doctors decided to remove abdominal tumor b performing a surgery. The

consent of patient was duly obtained and surgical operation was performed.

As alleged during the surgery the body of the pancreas was damaged and

which was treated and drain was fixed to drain out the fluids. Unfortunately

the patient died due to injury in pancreas which was alleged to have caused

during the surgery. Kusum Sharma, wife of deceased patient filed a

complaint for medical negligence and claimed compensation from Batra

Hospital and the medical practitioners who treated the patient.

Mrs. Kusum Sharma file a claim for compensation before Consumer Forum.

However National Commission did not find any merit in the allegations of the

patient and dismissed the same primarily for want of adequate evidence.  On

the contrary on the basis of medical literature and evidence of eminent

doctors of AIMS it was confirmed that the treating doctors had not committed

any negligence.  It was also found that all the standard medical protocol was

duly followed and that in the circumstances no malafides can be attributed

against the hospital.  Hence Mrs. Kusum Sharma preferred an appeal before

Hon’ble Supreme Court of India.

P RINCIPLE L AID D OWN I N T HE P RESENT C ASE

After carrying out a detailed analysis on cases of medical negligence Hon’ble

Supreme Court has laid down following guidelines for determining the cases

of negligence against medical practitioners.

1. 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.

2. 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.

3. 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.

4. A medical practitioner would be liable only where his conduct fell below that

of the standards of a reasonably competent practitioner in his field.

5. 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.

6. 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.

7. 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.

8. It is our bounden duty and obligation of the civil society to ensure that the

medical professionals are not unnecessary harassed or humiliated so that

they can perform their professional duties without fear and apprehension.

9. The medical practitioners at times also have to be saved from such a class of

complainants who use criminal process as a tool for pressurizing 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.

10. 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.

C ONTRIBUTION O F T HE J UDGMENT I N T HE F IELD O F M EDICAL N EGLIGENCE

C RITICAL O PINION

Law of medical negligence has yet again been dealt quite exhaustively by

the Hon’ble Supreme Court of India in this case. In the present case Hon’ble

Supreme Court analyzed both English as well as Indian cases at great length.

On the basis of these case laws Hon’ble Supreme Court has laid down

detailed guidelines so as to decide the cases of medical negligence and

thereby attempted to settle the law relating to medical negligence.

In these guidelines the Court seems to have adopted a balanced approach by

keeping interest of society intact and also given desired protection to the

members of the medical profession. On the detailed analysis of these

guidelines it becomes apparent that the liability of medical practitioner in

respect negligence has been kept intact but at the same time they have

been granted reasonable amount of freedom in choosing one course of

treatment over course of treatment. Hon’ble Supreme Court has expressly

recognized that in the realm of the diagnosis and treatment there may be

difference of opinion amongst medical practitioner but a medical practitioner

does not become liable merely because the his conclusion differs from other

doctor. Not only this Hon’ble Supreme Court went on to say that

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.

However while saying so Hon’ble Supreme Court does not absolve medical

practitioner from liability for negligence. In these guidelines the Court has

expressly stated that medical professional is expected to bring a reasonable

degree of skill and knowledge and must exercise a reasonable degree of

care. A medical practitioner would be liable for medical negligence when he

fails to exercise reasonable degree of care while treating a patient.

In addition to this Hon’ble Supreme Court urged that medical practitioner

should not be pressurized and harassed by filing false complaints against

them. This is for the first time in the history of medical law that Hon’ble

Supreme Court has observed that it is the bounden duty of society to ensure

that the medical professionals are not unnecessary harassed or humiliated

so that they can perform their professional duties without fear and

apprehension. Thus the Court has discussed the law relating to medical

negligence from various angles and finally came to the balanced conclusion.

In conclusion it can be stated that this is a landmark case in the history of

law pertaining to medical negligence and the guidelines set forth in the

present case will be used as barometer for several decades in future in order

to decide the cases of medical negligence.