The medical profession is considered to be one of the noblest professions on
the planet Earth. And due to this special status, medical practitioners are
often put on a pedestal and it's more often than not that they are expected to
take an absolute amount of care. We expect the doctors and medical professionals
to follow reasonable "industry standards", to put it briefly we expect to be
"cured". However, the doctors and medical professionals are also humans and as
Alexander Pope puts it, "To Err is Human". This is where the concept of
"Negligence" comes in. It is "the failure to undertake a reasonable amount of
care which is to be expected from a reasonable person".
"Medical Negligence" in the recent past has become one of the most serious
concerns relating to negligence not only in Indian jurisdiction but also in
international domains. A depositary duty is owed by the physician and/or medical
practitioner to the patient and it is pertinent for them to disclose any and all
requisite details and information such as the procedure of the surgery, the side
effects of treatment, etc.
The case at hand, i.e., "Nizam Institute of Medical Science v. Prasanth S.
Dhananka" was decided in 2009 where the facts were majorly concerned with the
substantial legal issue of medical negligence. The issues that arose before the
court were whether the doctors were "negligent", whether the liability imposed
on the doctors be dissolved if the consent of the patient is given and whether
sufficient compensation was granted to the patient/complainant. The court in its
judgement granted the "highest-ever awarded" compensation of 1 crore while
considering the medical negligence cases and also set up precedent-setting
guidelines that will be discussed in detail later in the project.
Negligence is defined as "the omission to do something which a reasonable and
prudent person would do or it is the commission of an act which the similar
fellow would not do". "Medical Negligence" occurs when the medical
professional's act falls below the accepted threshold of recognized "standard of
care" during the medication of a certain patient.
When consulted by a particular doctor, the patient is owed certain "duties" such
as a duty of care to take a call on the case, to decide the treatment and in the
administration of the same and when the breach of any of these duties is
observed, the right to take action for negligence is granted.
In English Jurisprudence, the "Bolam's Test" laid down in "Bolam v. Friern
Hospital Management Committee", states that "the standard of skill taken should
be that of an ordinary skilled person in the profession who exercises that
particular skill and the failure to do so will lead to an action in negligence.
It's not necessary to exercise the skill of the highest degree, but reasonable
skill is sufficient as accepted by a "responsible body" of professionals." This
test has been repeatedly approved and referred to by the House of Lords and the
The encumbrance of proving the "claims" and the whole burden of making a case in
on the complainant or the plaintiff.
The liability of the doctor can be civil or criminal.
· Under section 42(11) of the new "Consumer Protection Act, 2019" the act of the
practitioner concerning medical negligence will be considered a "deficiency".
And under the same act, "medical services" falls under the scope of services
under Section 2(42). This was rightly held in the landmark judgement of "Indian
Medical Association v. V.P. Shantha".
· Similarly, criminal liability can also be imposed upon the defendant. Under
several provisions of the "Indian Penal Code, 1860". If the death of a person or
a "threat to life" is caused by the "negligent actions" of another person, then
imprisonment or fine shall be imposed. Concerning criminal liability, the
element of "mens rea" must be there.
There can be different types of medical negligence. Misdiagnosis of a patient is
one such type where the practitioner misidentifies the medical issue associated
with the patient and gives a wrong treatment and diagnosis for the issue.
Negligence also entails when there is questionable delay in the diagnosis of the
problem or when reasonable "standard of care" is not exercised by the doctor
while prescribing a long-term treatment of a chronic illness.
The most prevalent type of "Medical Negligence" is when there is error due to
negligence in surgery which is expected to be "industry standards" and also when
the surgeon is grossly negligent and performs a surgical operation that is
completely unnecessary to the practicalities of the situation. More types
generally include, negligence while administering anaesthesia, where there is
negligence in extremely delicate matters such as pregnancy and childbirth,
The case at hand referred to a handful of cases, the context of which has been
explained briefly in the following paragraphs.
In a precedent-setting judgement of "Jacob Matthew v. the State of Punjab", the
top court tried to answer the question of criminal and civil liability of
medicine practitioners related to negligence. In this very judgement, the SC
laid down certain "guidelines" for imposing liability on the medical
practitioner in case of rash actions leading to damage to the patient. It was
also rightfully observed in this case that the "only assurance" that a doctor
can give to the patient is that he is adequately possessed of the skills
required by their profession and also that it is quite impossible to guarantee a
The bench in the case of "Samira Kohli v. Dr Prabha Manchanda", expanded on the
concept of "consent" of the patients which is very essential to try to answer
the fine distinction between "implied consent" and "expressed consent".
Implied consent concerns itself with the reasonability of the issue and a
general appreciation of the circumstances, conversations and consequential
situations related to the issue.
The Supreme Court in the case of "Achutrao Haribhau Khodwa v. State of
" held that "the skill and knowledge of the medicine profession
will be different for each doctor and it is quite possible that there may be
differing medical opinions, but as long as the professional carry out their
duties in an acceptable manner and the court finds that due "care and skill"
have been exercised, then the doctor wouldn't be held liable."
Facts Of The Case
The facts of the case "Nizam Institute of Medical Institute v. Prasanth S.
Dhananka" were straightforward. In 1990, Prasanth S. Dhananka (from now on
referred to as the complainant), a 20-year-old engineering student identified
some fever and then went to the appellant "Nizam Institute of Medical Science (NIMS)"
for a checkup. The date was 9th of September.
There, he was examined by a chest and tuberculosis specialist and after taking
an X-ray, a certain "innocent tumour" called Neurofibroma and some erosion of
the nearby ribs was identified. The specialist recommended the
"ultrasound-guided biopsy" for the tumour but after several attempts, the
complainant was referred to Dr P.V. Satyanarayana, who was a "Cardio Thoracic
Surgeon" for an excision biopsy of the tumour.
The admission of the complainant to the hospital occurred on the 19th of October
and after 4 days the operation was performed and the tumour removed. It came to
surface that the complainant suffered "acute paraplegia" which entailed a
complete loss of lower limbs and several other impediments, which led to the
complainant being discharged on 19th May 1991, with paralysis. The complainant's
condition required constant medical attention from the nurses, plus
physiotherapy due to an infection in the urinary tract and certain other
complications such as bed sores, etc.
There was constant pressure to obtain of a detailed report from the parents of
the complainant to NIMS but to no avail. After trying so many times and not
receiving any reply, the complainant filed a complaint before "National Consumer
Redressal Commission" (NCRC) on the 5th of April, 1993, where the allegations of
medical negligence were levelled against P.V. Satyanarayana and imposing
vicarious liability on NIMS and a statutory liability on Andhra Pradesh state.
The Arguments of both parties have been briefly explained below:
Arguments of the Complainant
It was alleged by Prasanth S. Dhananka that there had been negligence in the
pre-operative stage as well as in the operative stage. There were also
allegations that the postoperative complications weren't explicitly mentioned to
the complainant, and that the consent was taken only for an "exploratory
procedure" but complete excision and removal of a rib (4th one) had been carried
out in the process of which several "inter-costal blood vessels" had also been
"sacrificed" leading to the "paraplegia" of the patient. A presence of a
Neurosurgeon was also quite essential because the "neurofibroma excision" also
had various neurological implications. There was also post-operative negligence
in care leading to pressure ulcers and severe pain.
Arguments of the Respondents
It was argued by the defendants that there had been absolutely no negligence,
that the complaint was merely an "afterthought" and also that the provisions of
the C.P.A couldn't be attracted. It was also stated by the defendants that the
biopsy of the tumour was essential for the treatment and determination of the
tumour since previous procedures (FNAC) weren't successful despite repeated
attempts. It was thought fit by the doctors to remove the ribs and the tumour as
it can turn malignant at a later stage.
It was also contended that the presence of a neurosurgeon was not required since
the cardiothoracic surgeon was already present. It was also pleaded that there
was no negligence in pre-operative as all the requisite medical tests had been
performed sincerely and responsibly. And also, there was no breach of "duty of
care" during the post-operative stage as considerable attention was given to the
complainant by the respondent.
Judgement of the Commission
Based on these broad facts, the judgement was concluded by the NCRC. In the
Commission's order, which was dated 16th February 1999 it was concluded that
negligence was there on part of the defendants in this case. During the
pre-operative stage, the CT surgeon stated that he had known about the extension
of the tumour into the vertebrae, this inherently accounted for the need for a
neurosurgeon. And as the facts warrant it, the neurosurgeon wasn't consulted
before the surgery or even during it.
There was negligence during the operation also, as previously mentioned, it was
supposed to be "exploratory" and not an entire excision as it so happened. It
was also noted by the commission that the operating surgeons left without
meeting the parents of the complainant and without letting them know about the
excision or the surgery, there was a serious impression that something had gone
wrong otherwise they would've normally met the parents.
Based on these considerations, the mental agony of the family, the present and
future expenses, damages to the family, and the shortening of life expectancy,
the Commission ordered compensation of around 15.5 lakhs. It is pertinent to
note that the commission rejected the claim of the complainant that no consent
was given, it recognized the existence of "implied consent" by the parents.
Following this judgement, 2 appeals were filed both by the complainant and the
respondent. One was the "Civil Appeal No.4119 of 1999" by NIMS which stood
against the judgement of the commission and the respondent disowned any
liability and argued that there was no existence of negligence on the part of
doctors. Another one was the "Civil Appeal No. 3126 of 2000" by the complainant
where the argument was that the complainant didn't feel the compensation enough
to the situation that was dealt in the way it was by the respondents and
considering the same, he asked for an enhancement in the compensation.
Judgement of the Supreme Court
The Top court upheld the judgement of the commission and closely checked the 3
issues i.e., that whether there was negligence in the diagnosis of the issue,
surgical operation and also in post-operative procedures. The court found that
the Dr Satyanarayana contended that the tumour's extension into the vertebral
column was revealed only after the surgery, but in the discharge record there
was a reference to a "mass lesion in the upper chest with ribs erosion".
This reference calls into question the doctor's statement and also that had a
proper MRI test been conducted, the reveal of the extension of the tumour into
the spinal cord would have been indeed a possibility. However, the argument of
the doctor also finds some support from the bench but they gave more weightage
to the complainant's contention. It is significant that implied consent had been
there for the "excision biopsy" but not "informed consent" from the complainant
for the "excision surgery".
There were two issues regarding consent which are relevant in this case. One was
whether there needs to be "Informed consent" for the removal of the organs and
also while considering the nature of the consent. Another was whether the
consent that was given for "diagnostic surgery" can be interpreted as consent
for additional surgical procedure that can either be justified as either
"radical" or "conservative" procedure given the context of the medical issue.
The court held that regarding the biopsy of the tumour, the consent was more or
less implied but regarding the excision and removal of the tumour cannot be
implied from the aforesaid observations. Regarding the Surgical Operation
itself, there was negligence present at that stage also as the discharge record
showed that the neurofibroma was not only confined to the thorax but had
extended beyond it into the "posterior medical column" where there was the
presence of "inter-costal blood vessels", this pretty much justified and
required the intervention of a neurologist or a neurosurgeon in the
"pre-operative" as well as during the operation.
Also, the C.T scan showed a "lesion" in the thorax with erosion to the ribs. On
the objective analysis of the facts, it is also revealed that had proper tests
taken place, there was a huge possibility that the extension of the tumour to
the spinal cord would have been caught. In the light of these facts and the
reasoning of the bench, the attending doctors were held negligent and the NIMS
was also adjudged vicariously liable. The SC confirmed the judgement and the
findings of the commission.
The complainant had held his compensation claim at 4.61 crores before the
commission but was then granted the total compensation amounting to around 15
lakhs. The court had to strike a middle ground and after extensively discussing
and after careful consideration of all the facts the court granted a
compensation of around "1 crore rupees" to the complainant.
Analysis Of The Judgement
The Supreme Court and the commission's judgements were seriously considerate of
the facts and the arguments of both the complainant and the respondent. The
judgement of the court was logically reached and the author agrees with the
reasoning applied by the judges while giving out their judgement.
The judgement highlights were that the doctors were negligent in the different
stages of the procedure and the surgical operation. There was no consultation of
any neurologist or a neurosurgeon when the very nature of the tumour i.e.,
Neurofibroma warranted their "presence" due to its nerve-related implications.
There was also a question of whether consent had been given for the surgical
excision of the tumour or whether the implied consent was only reserved for the
biopsy of the neurofibroma to understand its anatomy and the diagnosis.
The author also finds the compensation portion of the judgement by the Supreme
Court much better than the one handed out by the commission. As already stated
above, even though the complainant in his present condition was earning a
sustainable living i.e., of 28 lakhs per annum, his work entailed a lot of
moving around which caused a lot of mental and physical distress due to
"paraplegia" to both the complainant and the family members.
And 15 lakhs as compensation for the suffering of the complainant seems
implausible. The author finds the compensation as given by the Supreme Court a
bit more rational and "1 crore" though neither will recover the previous
condition of the patient nor will it be equal to the blood and tears lost, it is
rational and seems fair to be granted concerning all the medical expenses,
personal expenses, etc. It is difficult to satisfy all the parties but a balance
must be struck.
The court also rightfully observed in this case that sympathy for the patient
should not come in the way of correctly delivering judgement and rational
intelligence must be the sole basis for assessment. The severely disabled person
requires assistance and mental support every day and it takes a toll on close
The feeling of anxiety and uncertainty while expending resources into litigation
by the complainant and his family was rightfully taken note of by the bench.
This case serves as one of the bench mark cases for the medical hospitals and
practitioners to exercise serious care while dealing with medical issues, a few
more tests like an MRI and consultation with a neurosurgeon would have probably
saved Prasanth from the paralysis, embarrassment and distress. And NIMS on the
other hand, would have saved 1 crore in compensation.
It was rightly cautioned by the court that caution must be exercised for that if
every doctor was summoned for questioning and every frivolous claim was
entertained then the medical profession would be left inefficacious and
impotent, and this would eventually result as hindrance in the development of
"Medical Negligence" is inherently an important concept in the "Law of Torts".
The doctors must and should be held accountable for their rash and negligent
actions while diagnosis and if required during the surgery as well as during the
post-operative treatment. Doctors are only humans, and must not be put on a
pedestal above all. But, due to their nature of the profession, even a small
negligent action can be a matter of life or death.
As discussed above in the relevant case laws there can be different approaches
to a particular medical problem and it depends on the experience and skills of
different practitioners, however before giving out advice and treatment it is
the duty of that particular medical professional to possess certain "standard
skills" and to exercise a "duty of care" which may be considered reasonable and
acceptable by the medical community.
The present case, "Nizam Institute of Medical Science v. Prasanth S. Dhananka
is important for the Indian jurisprudence in the sense that it tries to answer
certain quintessential questions of "Informed consent" and "Implied consent" and
also those of negligence related to the medical profession. The case is also
important in the fact that it granted the highest ever compensation in the case
of medical negligence and this in itself is quite rare and will surely help in
the expansion of this right and reduction in the cases of "medical negligence"
which in turn lead to development both in the field of study of law as well as
in the medicine profession.
- Nizam Institute of Medical Sciences v. Prasanth S. Dhananka, 2009 (6)
- Ratanlal Ranchhoddas & Dhirajlal Keshavlal Thakore, The Law of Torts 514
(24th ed., Wadhwa and Company Nagpur 2002).
- Bolam v. Friern Hospital Management Committee, 1957 2 All ER 118.
- Indian Medical Association v. V.P. Shantha, 1995 SCC (6) 651.
- Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162.
- Richa Singh, Medical Negligence in India (Aug 3,2019),
- Jacob Matthew v. State of Punjab, AIR 2005 SC 3180.
- Samira Kohli v. Dr. Prabha Manchanda, 2008 SCC (2) 1.
- Achutrao Haribhau Khodwa v. State of Maharashtra, 1996 SCC (2) 634.
- supra note 1.