“This appeal is directed against the Final Judgment and Order dated 01.09.2009 passed by The National Consumer Disputes Redressal Commission in First Appeal No. 93 of 2004 whereby the National Commission allowed the appeal and set aside the Order dated 19.01.2004 of The State Commission, West Bengal, Kolkata.
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. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did not possess. The standard to be applied for judging whether the person charged has been negligent or not would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.
It is not in dispute that the Appellant is a Qualified Senior Doctor with an experience in the field and also possessed the requisite knowledge and skill in the subject. In our view, Respondent No.1 was under a legal obligation to prove a specific kind of negligence on the part of the Appellant in performing the surgery and also was required to prove that any subsequent ailments which she suffered on her return to home were suffered by her only due to improper performance of conventional surgery by the Appellant and if the surgery had been successful, she would not have suffered any kind of these ailments. In our opinion, there has to be a direct nexus with these two factors to sue a Doctor for his negligence. Suffering of ailment by the patient after surgery is one thing. It may be due to myriad reasons known in medical jurisprudence. Whereas suffering of any such ailment as a result of improper performance of the surgery and that too with the degree of negligence on the part of Doctor is another thing. To prove the case of negligence of a Doctor, the medical evidence of experts in field to prove the latter is required. Simply proving the former is not sufficient. In our considered opinion, Respondent No. 1 was not able to prove that the ailments which she suffered after she returned home from the Hospital on 08.08.1996 were as a result of faulty surgery performed by the Appellant. The impugned order is set aside and that of the order passed by the State Commission is restored.”
– Hon’ble Justice Abhay Manohar Sikri, Dr. S.K. Jhunjhunwala v. Mrs. Dhanwanti Kumar, [Civil Appeal No. 3971 of 2011].