MARTIN F. D'SOUZA versus MOHD. ISHFAQ

Citation: [2009] 3 S.C.R. 273 · Decided: 17-02-2009 · Supreme Court of India · Bench: MARKANDEY KATJU · Disposal: Appeal(s) allowed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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(2009] 3 S.C.R. 273 
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MARTIN F. D'SOUZA 
A 
v. 
MOHD. ISHFAQ 
(Civil Appeal No. 3541 of 2002) 
FEBRUARY 17, 2009 
B 
[MARKANDEY KAT JU AND R.M. LODHA, JJ.] 
"' 
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CONSUMER PROTECTION ACT, 1986: 
Services of Doctors - Medical negligence - Patient c 
suffering from renal failure -
Already undergoing 
haemodialysis - Treatment - Certain medicines prescribed 
- Patient complaining hearing impairment - Approaching 
·~, 
National Consumer Disputes Redressal Commission for 
k;,., 
compensation - Commission allowing the complaint and 
-+ 
awarding compensation -Appeal by Doctor- Held: Since the D 
patient was not only suffering from renal failure, but also from 
urinary tract infection and blood infection, as also high urea, 
the doctor had naturally to take a drastic measure to attempt 
to save the life of the patient - Situation was aggravated by 
the non-cooperation of the patient - Extraordinary situations E 
require extraordinary remedies - If the Doctor chose to save 
" 
the life of the patient rather than his hearing surely he cannot 
~ 
be faulted - Thus in the facts of the case, the doctor was not 
guilty of medical negligence - Consumer Fora/Criminal Court 
should first refer the matter to a competent doctor or F 
Committee of doctors specialized in the field and when prima 
facie case of medical negligence is attributed, then only issue 
notice to a doctor or hospital against whom complaint made 
- Direction issued - Warning to police officials not to arrest 
..,- "' 
doctors in such cases unless the facts clearly come within the G 
parameters laid down in Jacob Mathew's case - Penal 
Code, 1860, s.304A - Negligence. 
This appeal has been filed by a Doctor, whose 
273 
H 
274 
SUPREME COURT REPORTS 
[2009) 3 S.C.R. 
A 
patient had alleged medical negligence against him 
leading to hearing impairment and got certain amount of 
compensation from the National Disputes Redressal 
Commission. 
B 
Allowing the appeal, the Court 
HELD:1.1. A medical practitioner is not liable to be 
held negligent simply because things went wrong from 
mischance or misadventure or through an error of 
judgment in choosing one reasonable course of 
c treatment in preference to another. He would be liable 
only where his conduct fell below that of the standards 
of a reasonably competent practitioner in his field. For 
instance, he would be liable if he leaves a surgical gauze 
inside the patient after an operation or operates on the 
D wrong part of the body, and he would be also criminally 
liable if he operates on someone for removing an organ 
for illegitimate trade. [Para 41] [295-F-H; 296-A] 
1.2. There is a tendency to confuse a reasonable 
person with an error free person. An error of judgment 
E may or may not be negligent. It depends on the nature 
of the error. It is not enough to show that there is a body 
of competent professional opinion which considers that 
the decision of the accused professional was a wrong 
decision, provided there also exists a body of 
F 
professional opinion, equally competent, which supports 
the decision as reasonable in the circumstances. [Paras 
42 and 43] [296-A-C] 
Jacob Mathew vs. State of Punjab and Anr. (2005) 6 
G 
SCC 1; Bo/am vs. Friern Hospital Management Committee 
(1957) 1 WLR 582 and Achutrao Haribhau Khodwa & others 
vs. State of Maharashtra & others, AIR 1996 SC 2377, relied 
on. 
Eckersley vs. Binnie (1988) 18 Con LR 1, referred to. 
H 
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MARTIN F. D'SOUZA v. MOHD. ISHFAQ 
275 
--1 
Hunter vs. Hanley 1955 SLT 213, referred to. 
A 
2.1. The standard of care has to be judged in the light 
of knowledge available at the time of the incident and not 
at the date of the trial. Also, where the charge of 
negligence is of failure to use some particular equipment, 8 
the charge would fail if the equipment was not generally 
" 
available at that point of time. [Para 44] [296-E-F] 
2.2. The higher the·acuteness in an emergency and 
the higher the complication, the more are the chances of 
error of judgment. At times, the professional is confronted c 
with making a choice between the devil and the deep sea 
and has to choose the lesser evil. The doctor is often 
called upon to adopt a procedure which involves higher 
element of risk, but which he honestly believes as 
• 
providing greate~ chances of success for the patient 
.. 
D 
rather than a procedure involving lesser risk but higher 
chances of failure. Which course is more appropriate to 
follow, would depend o

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