Miscellaneous Application No. 775 of 2016 · High Court of Uttarakhand · 2025

Learned counsel for the applicant submits that applicant is a doctor by profession and has discharged her duties as per the Medical Protocol and there was no negligence on her part; that on 01.10.2013, USG test was prescribed was by the doctor and, thereafter, on

27.10.2013, wife of respondent no. 2 visited the doctor complaining of vaginal discharge and pain in her lower abdomen; that after medical examination, the doctor prescribed for medicines and tests, which were appropriate; but respondent no.2 did not conduct the USG and LFT test of his wife. Learned counsel for the applicant submits that complainant and his wife were negligent on their part, they ignored the advice of the doctor and she did not underwent the USG and LFT test, which were prescribed by the doctor and when respondent no. 2 and his wife visited the hospital after three days, by that time, due to loss of fluid, the foetus could not survive.

5. Per contra, Mr. Saurabh Kumar Pandey, learned counsel for respondent no. 2 submits that applicant was negligent from 27.10.2013 to 04.11.2013; that, despite the fact that there was ultrasound facility 4 available in her clinic, applicant did not conduct ultrasound of the wife of respondent no.2 in her clinic on

27.10.2013 and just moved on to prescribe it; that complainant took his wife to the applicant on 04.11.2013 and, on that date also she, after examining the wife of the complainant, did not inform the respondent no. 2 that the condition of the foetus is not well.

6. Learned counsel for the applicant submits that respondent no.2 have also made a compliant before the Ethical Committee of Medical Council of India, alleging the medical negligence of the applicant, but the Ethical Committee opined that the treatment given by the applicant was as per the standard norms and there was no medical negligence on the part of the applicant, and, as such, the Revisional Court erred in remanding the matter. In order to buttress his argument, learned counsel for the applicant placed reliance on the judgment rendered by Hon’ble Apex Court in the case of Jacob Mathew Vs. State of Punjab, reported in 2005 (6) SCC 1, wherein, it is held that a physician would not assure the patient of full recovery in every case; 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 and the only assurance which such a professional 5 understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skill with reasonable competence. Paragraph no. 18 of the aforesaid judgment is extracted hereunder:- “18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. 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 practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. 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 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 necessary for every professional to possess the highest level of expertise in that branch Associates v. J.D. Williams & Co. Ltd. [2001 PNLR 233 (CA)] Sedley, L.J. said that where a profession embraces a range of views as to what is an acceptable standard of In Michael Hyde practises. 6 conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid., para 8.03.)”

7. Similarly, in the case of Kusum Sharma & others Vs. Batra Hospital and Medical Research Center and others, reported in (2010) 3 SCC 480 45, Hon’ble Apex Court has mentioned the definition of the word “Negligence” in paragraph no.45, which was extracted from Halsbury’s Laws of England, 4th Edn., Vol. 26 pp. 17-18 and is reproduced below: “Negligence.—Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.”

8. Hon’ble Apex Court in the case of Kusum Sharma & others (Supra) proceeded to enlighten certain principles, which deal with medical negligence, which are mentioned in paragraph no.89 of the aforesaid judgment. Paragraph no.89 of the said judgment is extracted below: “89. On scrutiny of the leading cases of medical negligence both in our country and other countries specially the United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well-known principles must be kept in view: 7 I. Negligence is the breach of a duty exercised to do something which a by omission reasonable man, considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. guided II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. III. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires. IV. A medical practitioner would be liable only where his conduct fell below that of the standards competent practitioner in his field. reasonably a V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor. VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence. VII. Negligence cannot be attributed to a doctor long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of 8 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. VIII. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck. to ensure IX. It is our bounden duty and obligation of the the medical civil society professionals are not unnecessarily harassed or humiliated so that they can perform their duties without professional apprehension. X. The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool professionals/ the medical pressurising hospitals, particularly private hospitals or clinics compensation. Such malicious proceedings deserve to be discarded against the medical practitioners. extracting uncalled XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients. The interest and welfare of the patients have to be paramount for the medical professionals.”

9. In paragraph no.90 of the judgment rendered in Kusum Sharma & others (Supra), Hon’ble Supreme Court proceeded to hold that the aforementioned principles must be kept in view while deciding the cases of medical negligence and as long as the doctors have performed their duties and exercised an ordinary degree of professional skill and competence, they cannot be held guilty of medical negligence and it is imperative that the 9 doctors must be able to perform their professional duties with free mind.

10. In view of the law laid down by Hon’ble Apex Court in the aforesaid cases, this Court has no hesitation in holding that the respondent no.2 has failed to make out any case of medical negligence against the applicant. Furthermore, the Revisional Court erred in quashing the order dated 26.08.2014 passed learned Additional Chief Judicial Magistrate, Haridwar and remitting the matter back to the Court of A.C.J.M. for decision afresh.

11. In such view of the matter, the present criminal miscellaneous application stands allowed and impugned judgment & order dated 29.06.2016 passed by learned IIIrd Additional Sessions judge, Haridwar in Criminal Revision No. 506 of 2014 is hereby quashed. Ujjwal (Alok Mahra, J.) 19.06.2025