TaxTMI 
TaxTMI 
2013 (1) TMI 1071
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....Delhi. 4. Relevant facts are taken from Special Leave Petition (C) No.26043 of 2010. 5. The appellant and respondent No.2, who are doctors, conducted an operation on the left leg of the husband of the complainant. Sometime after the operation, the patient died on 13.07.2008. Respondent No. 1, wife of the deceased, filed a complaint against the appellant and respondent No.2, before the District Consumer Forum. We may notice here that respondent No.2 is the appellant in Civil Appeal No...........................of 2013 arising out of SLP(C) No.1495 of 2011. The complaint was duly registered and notice was issued to the appellant and respondent No.2. Against the issuance of the notice, the appellant filed a revision petition before the S....
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....f V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. (supra), has erroneously declared the earlier judgment of this Court in the case of Martin F. D'Souza Vs. Mohd. Ishfaq (supra) as per incuriam, on a misconception of the law laid down by a three-Judge Bench of this Court in Jacob Mathew Vs. State of Punjab & Anr., (2005) 6 SCC 1. We are not inclined to accept the submission made by Mr. Rao. The judgment in Jacob Mathew (supra) is clearly confined to the question of medical negligence leading to criminal prosecution, either on the basis of a criminal complaint or on the basis of an FIR. The conclusions recorded in paragraph 48 of Jacob Mathew (supra) leave no manner of doubt that in the aforesaid judgment this Court was concerne....
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....nder criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. (8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge....
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.... the complainant to clearly make out a case of negligence before a medical practitioner is charged with or proceeded against criminally. A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient. 29. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason - whether attributable to himself or not, neither can a surgeon successfully wield his life-saving scalpel to perform an essential surgery, nor can a physician successfully administer the life-saving dose of medicine. Discretion being the better part of valour, a medical professional would feel b....