DR. S. K. JHUNJHUNWALA versus MRS. DHANWANTI KAUR & ANR.

Citation: [2018] 12 S.C.R. 868 · Decided: 01-10-2018 · Supreme Court of India · Bench: ABHAY MANOHAR SAPRE · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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868
SUPREME COURT REPORTS
[2018] 12 S.C.R.
DR. S. K. JHUNJHUNWALA
v.
MRS. DHANWANTI KAUR & ANR.
(Civil Appeal No. 3971 of 2011)
OCTOBER 01, 2018
[ABHAY MANOHAR SAPRE AND VINEET SARAN, JJ.]
Consumer Protection Act, 1986 – Medical Negligence – When
not – Appellant performed laparoscopy and thereafter general
surgery to remove the Gall Bladder of Respondent No.1 –
Respondent No.1 filed complaint alleging negligence by the
appellant in performing the surgery and claimed compensation for
the mental suffering and pain suffered by her throughout after the
surgery as a result of various ailments suffered by her post surgery
– Respondent No.1 further alleged that she never gave consent for
performing general surgery of her Gall Bladder rather she had
given consent for performing laparoscopy only – Complaint
dismissed by State Commission – National Commission awarded Rs.2
lakhs to be paid by the appellant to Respondent No.1 on account of
negligence on his part – Propriety of – Held: Appellant is a qualified
senior doctor with experience in the field and possessed the requisite
knowledge and skill in the subject to perform the surgery of Gall
Bladder – Initially he proceeded to perform the laparoscopy of the
Gall Bladder but while so performing he noticed some inflammation
and swelling on the Gall Bladder and therefore, decided to perform
the conventional surgery – There is evidence on record that the
appellant sought consent of  Respondent No.1’s husband to perform
the substitute operation and only thereafter proceeded to do
conventional surgery – Further, in terms of Clause 4 of the Consent
Form, the appellant was entitled to perform the conventional surgery
as a substitute to the former one having noticed some abnormalities
at the time of performing laparoscopy – Thus, there was no need to
have another Consent Form to do the conventional surgery – Present
is a clear case of grant of consent to the appellant to perform the
substituted operation of Gall Bladder of Respondent No.1–
Respondent No.1 failed to prove any specific kind of negligence of
the appellant while performing the operation or/and thereafter –
 [2018] 12 S.C.R. 868
868
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Impugned order set aside – Order passed by the State Commission
restored.
Consumer Protection Act, 1986 – Medical Negligence –
Factors to be proved – Discussed.
Allowing the appeal, the Court
HELD: 1.1 The appellant is a professionally trained doctor
and has acquired the post-graduate degree in the subject (FRCS)
from London way back in 1976 and worked there (UK) for seven
years and earned enough experience in the field of surgery. It is
also not in dispute that since 1976/1977, he has been in the field
of surgery in India till the date he performed operation of
respondent No.1 on 08.08.1996. These undisputed facts clearly
prove that the appellant is a qualified senior doctor with an
experience in the field and had also possessed the requisite
knowledge and skill in the subject to perform the surgery of Gall
Bladder. Initially he proceeded to perform the laparoscopy surgery
of the Gall Bladder of respondent No.1 as advised but while so
performing he noticed some inflammation, adhesion and swelling
on the Gall Bladder and, therefore, decided to perform the
conventional surgery, which he actually did on respondent No.1,
to remove the Gall Bladder. [Paras 25-27] [878-C-E]
1.2  Clause 4 of the Consent Form empowers the performing
doctor to perform such additional operation or procedure
including the administration of a blood transfusion or blood plasma
as they or he may consider substitute necessary or proper in the
event of any emergency or if any anticipated condition is
discovered during the course of the operation. In terms of clause
4 of the Consent Form, the appellant was entitled to perform the
conventional surgery as a substitute to the former one having
noticed some abnormalities at the time of performing
Laparoscopy. There was no need to have another Consent Form
to do the conventional surgery in the light of authorization
contained in clause 4 itself because the substitute operation was
of a same organ for which the former one was advised except
with a difference of another well known method known in medical
subject to get rid of the malady. There is an evidence on record
that the appellant having noticed while performing laparoscopy
DR. S. K. JHUNJHUNWALA v. MRS. DHANWANTI KAUR
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SUPREME COURT REPORTS
[2018] 12 S.C.R.
that there was s

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