LexBUOY SINHA ROY (D) BY LR. versus BISWANATH DAS & ORS.
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A B c D [2017] 14 S.C.R. 558 BUOY SINHA ROY (D) BY LR. v. BISWANATH DAS & ORS. (Civil f\ppeal No.4761 of2009) AUGUST 30, 2017 (ADARSH KUMAR GOEL AND UDAY UMESH LALIT, JJ.) Consumer Protection Act. 1986 - Medical Negligence - Appellant~· w/fe died after undergoing surgery (hysterectomy) at a nursing home - She was sl!ffering from high blood pressure and her hemoglobin was low - Since the nursing home in which she was operated did not have ICU facility, she was sh/fled to another nursing home and then to a hospital where she died - Appellant filed complaint before the State Commission. which was allowed - Cross appeals by appellant as also the respondent no. I (the Gynecologist, on whose alleged insistence appellants w/f'e was operated in the nursing home in question}-- National Commission reversed the order of State Commission - Plea of appellant that the decision to pe1:form surgery without first controlling blood pressure and hemoglobin (lmounted to medical negligence andfurther having E regard to the foreseeable complications. the decision to perform surgery at a nursing home which did not have the ICU for post operative needs, also amounted to medical negligence - On appeal. held: Negligence in the context of medical profession calls for a treatment with a difference - Error o.fjudgment or an accident is F not proof of negligence - So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative course was available - Thus. decision to perform surgery may not by itself be held to be medical negligence - However. there was no serious contest to the plea of the appellant that the operation should not G have been pe1formed at a nursing home which did not have ICU when it was foreseeable that there was post operative risk to the life of the patient - Since. the matter has been pending for 23 years. instead of remanding it for fresh adjudication on this issue, in the interests ofjustice. respondent no.I is directed to pay a sum of Rs.5 lakh to the heirs of the appellant without any interest- within 3 H 558 BIJOY SINHA ROY (D) BY LR. v. BISWANATH DAS & ORS. 559 months - .((deposit is beyond 3 months, the amount will carry interest A @ 12% p.a .. Negligence - Medical negligence - Concept of - Different in · Civil and Criminal law - Held: What may he negligence in civil law may not he .w in criminal - In criminal law. element <?f mens rea may be required and degree of negligence has to be much higher - B Whereas. res ipsa loquitur operates in domain <?f civil law, hut has limited application on a charge of criminal negligence. Negligence - What is - Held: Negligence is a breach of ditty · caused by omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would c not do. Negligence - Test of skill - Requirements of - Held: The test of skill expected is not of the highest skilled person - However. a professional may he held liable for negligence if he does not possess the 1'eq11isite skill which he claims or if he fails to exercise reasonable D competence. Consumer Protection Act. 1986 - Object of- Held: The object of setting up Consumer Fora was to provide speedy re1nedy to a consume1: Code of Civil Procedure. 1908 - s.89 - Alternative Disputes E Redressal (ADR)- Applicability of. to consumer fora - Held: The said provision ought to be duly invoked by the consumer fora . . ·Consumer Protection Act. 1986 - s.248 - Administrative control of National Commission - Held: National Commission has administrative control over all the State Commissions - Thus, it is F competent to introduce monitoring mechanism for speedy disposal - National Commission directed to issue appropriate directions in this regard and formulate an appropriate action plan. Jacob Mathew v. State of Pulljab (2005) 6 SCC 1: [2005) 2 Suppl. SCR 307 - relied on. G . Martin F.D 'Souza v. Mohd. Jshfaq (2009) 3 SCC 1: [2009) 3 SCR 273; V. Krishan Rao "V. Nikhil Super Speciality Hospital (2010) 5 SCC 513 : [20101 5 SCR l; Nivedita Sharma vs. Cellular Operators Assn. of India (2011) 14 SCC 337; Hussain v. State of U.P. H 560 A B c D E SUPREME COURT REPORTS [2017] 14 S.C.R. (2017) 5 SCC 702; Krishna Veni Nagam v. Harish Nagam (2017) 4 SCC 150; Salem Advocate Bar Association, TN v. UOI (2003) 1 SCC 49 : [2002] 3 Suppl. SCR 353
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