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No doctor can give 100% guarantee that the treatment or surgery would be beneficial for the patient. For that matter, no guarantee is given by any doctor or surgeon that the patient would be cured.
The only assurance which a doctor 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.
In the matter titled as “P. B. Desai versus State of Maharashtra, AIR 2014 SC 795, the Hon’ble Apex Court has held that:
- (c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, “Medicine is not an exact science. I shall use my experience and best judgment and you take the risk that I may be wrong. I guarantee nothing.”
In the matter Malay Kumar Ganguly vs Sukumar Mukherjee & Ors. AIR 2010 SC 1162, the Hon’ble Supreme Court of India has held that:
“INDIVIDUAL LIABILITY OF THE DOCTORS There cannot be, however, by any doubt or dispute that for establishing medical negligence or deficiency in service, the courts would determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.
In the landmark judgement of Jacob Mathew Petitioner v. State of Punjab & Anr. 2005
(3) CPR 70 (SC) the Hon’ble Supreme Court has held that:
Para 20: ….. 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.”
In the matter titled as “Lok Nayak Hospital versus Prema, RFA No. 56/2006” the Hon’ble High Court of Delhi vide judgment dated 06.08.2018 has held that medical negligence is not proved in case of unsuccessful sterilization operation, if the doctor / hospital has duly got the consent form and other forms signed by the patient and counter signed by her relatives in which it was specifically mentioned by the doctor / hospital that the operation need not be always successful and there are always some chances of failure, and if the operation is not successful the hospital or the concerned Doctor will not be held responsible.