March 28, 2019
Case name: S.K. Jhunjhunwala v. Dhanwanti Kaur & Anr.
The present appeal challenged National Consumer Dispute Redressal Commission (National Commission) order, whereby the National Commission awarded compensation for medical negligence to the respondent.
In the case, the Respondent filed a complaint under Section 10 of the Consumer Protection Act, 1986 against the appellant Doctor claiming compensation for loss and mental suffering and alleging negligence by the appellant in performing surgery on her.
The respondent’s main allegation was that she did not consent for performing general surgery of her gall bladder rather she had given consent for performing laproscopic surgery. The National Commission allowed the Respondent’s plea in part and accordingly awarded compensation of Rs. 2 lakhs to the respondent.
In appeal, the Supreme Court set aside the National Commission’s order. While setting aside the order, the Apex Court heavily relied on settled principles deciphered by series of English decisions pertaining to issue of negligence of a professional doctor and his liability for medical acts.
The Apex Court accordingly made reference to classic exposition of law laid down by the Queens Bench in the case of Bolam v. Friern Hospital Management Committee, wherein the Bench opined that:
“Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ….. It is wellestablished law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art”
Reference was also made to Supreme Court’s decision in the case of Jacob Mathew v. State of Punjab, wherein it was held that A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100 % for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence.
The Supreme Court while analyzing the aforesaid principles governing the test to determine medical negligence in the context of the facts of the present case allowed the appeal and denied compensation to the respondent.
The entire case can be accessed here.
 (1957)1 WLR 582
 (2005)6 SCC 1