Doctor cannot be held negligent simply because something went wrong

*III (2016) CPJ 379 (NC)*

*Doctor cannot be held negligent simply because something went wrong - He will not be liable for mischance or misadventure, or for an error of judgment - He will not be also liable for taking one choice of treatment, out of two or for favouring one school rather than another*

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No doubt, the OPs failed to make early diagnosis of tuberculosis in this case. Initially, it was diagnosed as Metastatic Adnocarcinoma, and OP started treatment by radiotherapy, as per standard norms. The patient himself concealed past history of cough and fever. We do not find any negligencecommitted during the treatment of the patient. Thus, we are not inclined to fasten any liability upon OPs for any medicalnegligence. But, considering the psyche and situation in the instant case, it is certainly shocking to the patient and his family members to know that the patient had cancer. No medical Negligence proved.

 In the above case, the following Orders were referred.

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In *Achutrao Haribhau Khodwa & Others v. State of Maharashtra & Others,IV (2006) CPJ 8 (SC)* the Hon’ble Supreme Court held that,
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“in the very nature of medical profession, skills differ from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor, so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable, if the course of action chosen by him was acceptable to the medical profession.

The Hon’ble Supreme Court in the case *Kusum Sharma & Others v. Batra Hospital & Medical Research Centre & Others, I (2010) CPJ 29 (SC)* the Bench comprising Hon’ble Justices Dalveer Bhandari and H S Bedi while dismissing the complaint, held that:

“Consumer Protection Act (CPA) should not be a “halter round the neck” of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments to explore possibility of reviving patients hanging between life and death.” Also said that “Doctors in complicated cases have to take chance even if the rate of survival is low. A doctor faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligence or by omitting to do an act, “It further observed as, “It is a matter of common knowledge that after some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish,”

In *Hucks v.Cole & Anr. (1968) 118 New LJ 469*, Lord Denning speaking for the Court, observed as under:
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“a medical practitioner was not to be held liable, simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner, in his field.”