December 4, 2021 In Uncategorized


A Division Bench of the Hon’ble #SupremeCourt comprising of Justice Hemant Gupta and Justice V. Ramasubramanin in the matter of Bombay Hospital & Research Centre v. Asha Jaiswal & Ors. (Civil Appeal No. 1658/2010 & 2322/2010) passed a Judgment dated 30-11-2021 and set aside an Order dated 06.01.2010 passed by the National Consumer Dispute Resolution Commission (#NCDRC) in a matter pertaining to #medicalnegligence.

In this case, the Deceased-Patient (Patient) was admitted in Bombay Hospital and Research Centre (Appellant herein) for difficulties in mobility along with pain in lower limbs. Thereafter the Appellant’s Team of Doctors performed Surgical Repair of Aneurysum on the Patient. The Patient was stable post-Surgery, however, later he was diagnosed with gangrene for which he was subsequently operated. The Patient was then stabilized and shifted to ventilator. During the routine check up at night, it was noticed that the Patient’s condition worsened along with loss of sensation in lower limbs. Thereafter, the Doctors conducted angiography and concluded that there was a clot which was obstructing flow of blood to lower limbs and the Patient was re-operated. Thereafter, he was put on ventilator after which, the Doctors under their expert supervision and care continued to treat the Patient. However, the Patient passed away on 12.06.1998.

Thereafter, the Legal Heirs of the Deceased-Patient (Respondents herein) filed a Consumer Complaint in NCDRC alleging medical negligence by the Appellants on the ground of ‘Res Ipsa Loquitor’, which means that ‘things speak for itself’ and in this case the accident is enough to prove negligence. The Respondents further alleged that the Doctors did not perform the Surgery with due care; the Patient was made to wait for tests where it was found that the machine was dysfunctional, there was delay in treatment after angiography as there were no operation theatres, the Doctors did not amputate the legs after diagnosis of gangrene, there was lack of efficiency and diligent care by Doctors post-Surgery, etc.

The Hon’ble NCDRC, after hearing the submissions of both Parties, upheld the claims of the Respondents and vide Order dated 06.01.2010 asked the Appellant-Hospital to pay Rs. 14,18,491/- with interest @9% per annum from date of filing of the Complaint. The Appellants, aggrieved by the Order of NCDRC dated 06.01.2010, filed a Civil Appeal before the Supreme Court. The Apex Court, after hearing both the Parties, passed a Judgment dated 30-11-2021 and made the following observations:

  1. That the Respondents, in this case, have not produced any expert evidence to prove the alleged medical negligence.
  2. That the Respondents have based their allegation of medical negligence solely on the Principle of Res Ipsa Loquitor. However, Res Ipsa Loquitor is only an aid in the evaluation of rule of evidence. It cannot be the sole basis of medical negligence, as pointed out in this case.
  3. As per the Bolam Test, the accused has to show that the standard of care and the skill attained by him/her was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill.
  4. The Appellants herein have produced all Treatment Records which show that the Team of Specialist Doctors had taken proper care and treatment of the Patient to the best of their capability and conducted Surgery after proper planning.
  5. That it is only a matter of chance that all operation theatres were occupied when the Patient had to undergo Surgery.
  6. Further, the machine in question is a highly expensive and complicated machine which unfortunately developed certain technical issues at the time when the Patient had to be tested. Such technical problems may arise because of innumerable factors beyond the human control. Hence, the same would not amount to negligence on the part of the Doctors and/or the Hospital.

In light of the above observations, the Supreme Court has held that Res Ipsa Loquitor cannot be the sole basis for establishing medical negligence, if the Hospital and the Doctor have worked prudently and with due diligence. However, by allowing ex-gratia payment of Rs. 5 Lakhs to the Respondents, the Hon’ble Apex Court has marinated a fine balance between rights of both Parties.


Sneha Verma


The Indian Lawyer

Leave a Reply