Mere legal principles not enough, taking expert medical opinion also important – Supreme Court

  • Posted on: January 13, 2022

The honorable Supreme Court recently overturned National Consumer Commission’s judgement that had held a surgeon negligent.

The Case

A patient was diagnosed with hydronephrosis, grade IV with renal stone in the right kidney and hydronephrosis of grade II in the left kidney. The surgeon operated the less affected left kidney first, and informed the patient about possibility of having to remove the right one at a later stage. The procedure was uneventful.

The patient suffered cardiac arrest after administration of anesthesia before the second surgery and died.

The National Consumer Commission held the surgeon negligent, stating the following:

“It is common knowledge that a person can survive with one kidney, just as a person can survive with one lung. There are cases where a patient suffers from failure of both kidneys and nephrectomy is performed to replace one of the damaged kidneys by a kidney of a donor after proper test and verification. Therefore, there was no hurry to perform the second surgery.”

The Supreme Court overturned this decision and observed that “the Commission’s opinion is not on analysis or based on medical opinion but their perception of the situation to arrive at a conclusion. Having expressed their personal opinion, they have in that context referred to the principles declared regarding Bolam test and have arrived at the conclusion that the second surgery should not have been taken up in such a hurry and in that context that the appellants have failed to clear the Bolam test and therefore they are negligent in performing their duties”.

“The conclusion reached to that effect is purely on applying the legal principles, without having any contra medical evidence on record despite the NCDRC itself observing that the surgeon was a qualified and experienced doctor and also that the anaesthetist had administered anaesthesia to 25,000 patients and are not ordinary but experienced doctors”.

Source: Order pronounced by the Supreme Court of India on 7th September, 2021.