BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE versus ASHA JAISWAL & ORS.

Citation: [2021] 10 S.C.R. 1118 · Decided: 30-11-2021 · Supreme Court of India · Bench: HEMANT GUPTA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 10 S.C.R.
   [2021] 10 S.C.R. 1118
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE
v.
ASHA JAISWAL & ORS.
(Civil Appeal No. 1658 of 2010)
NOVEMBER 30, 2021
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Consumer Protection – Medical negligence – When not –
Complaint filed against appellants-hospital and doctor, alleging
medical negligence in treating the patient-deceased – Compensation
awarded by NCDRC – On appeal, held: Patient was in serious
condition impending gangrene even before admission to the hospital
– Thus, even after surgery and re-exploration, if the patient does
not survive, the fault cannot be fastened on the doctors as a case of
medical negligence – A doctor is expected to provide reasonable
care which is not proved to be lacking in the present case –
Complainant led no evidence of experts to prove the alleged medical
negligence except their own affidavits – Medical record produced
does not show any omission in the manner of treatment – Experts of
different specialities and super-specialities of medicine were
available to treat the patient – Sole basis of finding the appellants
negligent was res ipsa loquitor which would not be applicable keeping
in view the treatment record produced by the hospital and the doctor
– There was never a stage when the patient was left unattended –
Digital Sub-Traction Angiography (DSA test) was conducted by the
hospital however, since it became dysfunctional, considering the
critical condition of the patient, an alternative angiography test
was advised and conducted and the re-exploration was thus planned
– If the operation theatres were occupied at the time when the
operation of the patient was contemplated, it cannot be said that
there is a negligence on the part of the hospital – Order passed by
NCDRC set aside – Complaint dismissed.
Tort – res ipsa loquitor – Applicability of – Discussed.
Allowing the appeals, the Court 
HELD: 1.1 The Commission while analyzing the evidence
observed that the complainant had filed evidence affidavits but
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the Hospital and the Doctor, though have filed their written
versions, but have not filed evidence by way of affidavits except
an affidavit of Dr. ‘K’. Such primary observation is itself
erroneous. The Hospital and the Doctor had filed their written
version by way of affidavit dated 7.1.2000 i.e., the same date on
which Dr. ‘K’ had filed an affidavit. The Commission has
overlooked the fact that written version is by way of an affidavit.
Later, the Hospital had also filed evidence affidavit on 13.07.2009
whereas the Doctor had filed a short affidavit on 30.8.2009
reiterating and confirming the statements, averments and the
contentions raised in the written version filed on 7.1.2000. Thus,
there is factual error in the order of the Commission. The basis
of finding the Doctor negligent in providing medical care is not
sustainable as there are both legal and factual errors in the
findings recorded by the Commission. Gangrene was not found
to be impending after few days of admission to the Hospital but
even before the patient was admitted. The patient was in
critical condition when the Doctor was consulted on 21.4.1998
and surgery was thereafter performed within two days.
[Paras 13, 17 and 18][1131-B-D; 1132-G-H; 1133-B]
1.2 The non-working of the DSA machine and consequent
delay in performing the test cannot be said to be negligence on
the part of the Doctor or the Hospital. The DSA machine is a
large, expensive and complicated machine which unfortunately
developed certain technical problem at the time when patient
had to be tested. Any machine can become non-functional because
of innumerable factors beyond the human control as the machines
involve various mechanical, electrical and electronic components.
The DSA test was conducted in the Hospital on 22.4.1998 and
hence DSA machine cannot be said to be dysfunctional for a long
time. The alternative process to determine the blood flow was
carried out by angiography and the decision for re-exploration
was taken at 12.30 p.m. No fault can be attached to the Hospital
if the operation theatres were occupied when the patient was
taken for surgery. Operation theatres cannot be presumed to be
available at all times. Therefore, non-availability of an emergency
operation theatre during the period when surgeries were being
performed on other patients is not a valid ground to hold the
BOMBAY HOSPITAL & MEDICAL RESEARCH CENTRE v.
ASHA JA

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