JUDGMENT : The moot question for consideration in this appeal is whether the appellant/plaintiff is entitled to realize any amount as damages from the defendants on the ground of medical negligence as she was subjected to a surgery for removal of a growth in her uterus, but the said exercise was not performed by the experts of the Department of Gynaecology of the 1st defendant/1st respondent Hospital. 2. Shorn of unnecessary details, the facts relevant for disposal of this appeal are as follows: The appellant/plaintiff is an unmarried lady. She was aged 33 years. In the month of May, 1993, she had severe abdominal pain and for treatment, she had approached the doctors of Medical Mission Hospital, Thiruvalla where she was advised to take scan on 27.5.1993 before treatment and a fleshy growth was found in her uterus and she was advised to remove it. Since she was not having sufficient funds with her to meet the expenses of the surgery, she expressed her desire to take medicines instead of surgery as it was also advised by the doctor that if she takes medicines, the fleshy growth will slowly disappear. But the severe abdominal pain continued and so, she approached one Dr. Sujatha of Government Hospital, Mavelikkara on 22.7.1993. She also prescribed medicines to the plaintiff. Still her abdominal pain continued, so, on 10.12.1993 she went to Pushpagiri Hospital, Thiruvalla, the 1st defendant to consult one Dr.Mary Philip, a Gynaecologist, but the duty doctor instructed her to meet Dr.Josetta, the 2nd defendant. Dr.Josetta examined her and informed her about the necessity of an emergent operation. But, the plaintiff informed that she was not having her close relatives with her, and so she was not prepared for a surgery at that point of time. But the doctors insisted for a surgery and she had undergone the same and got discharged from the hospital on 24.12.1993. But again, she had severe abdominal pain and so she approached the very same doctor and then she was referred to the Medical wing on 5.1.1994. But unfortunately they have not diagnosed her disease. Again on 7.3.1994, she met Dr. Sujatha and then it was revealed that though she had undergone surgery in Pushpagiri Hospital, nothing was done by the doctors and that was the reason for recurrence of severe pain. Therefore, she had to take costly medicines as per the advise of Dr. Sujatha. But unfortunately they have not diagnosed her disease. Again on 7.3.1994, she met Dr. Sujatha and then it was revealed that though she had undergone surgery in Pushpagiri Hospital, nothing was done by the doctors and that was the reason for recurrence of severe pain. Therefore, she had to take costly medicines as per the advise of Dr. Sujatha. Though, surgery had been done in Pushpagiri Hospital, her condition continued so and apart from the abdominal pain, she had severe pain to her legs and edema all over her body, due to the negligence in the treatment on the side of the authorities of Pushapagiri Hospital. After the surgery she is not in a position to do her job. Hence, the suit for realization of an amount of Rs.1,00,000/-as damages for the unnecessary surgery conducted by the doctors and the hospital authorities, due to their negligence. 3. Her claim for damages was resisted by the defendants/respondents inter alia contending that in fact, on 10.12.1993, she came to the hospital with complaints of severe abdominal pain. Before that, she was under treatment in the Medical Mission Hospital, Thiruvalla and also before Dr. Sujatha of the Government Hospital, Mavelikkara. The defendants have no idea about the medicines prescribed by those doctors to the plaintiff. When she visited the Hospital, she was referred to the labour room for examination. Though she needed an emergent operation, the doctors decided not to operate her as she was not accompanied by any of her very close relatives. But her pain was severe and one Ambika, a relative who accompanied the plaintiff had undertaken to take the responsibility of informing the said fact to the patient. It was also informed that the patient had no intention to marry and that she was aged 33 years at the time of her visit. Two senior doctors on duty with a view to do hysterectomy operation, opened her abdomen at about 10 p.m. in the night. But when it was opened, it was found that her uterus, ureter, bowels, and omentum, all united as a flabby globe with a chocolate cyst. Two senior doctors on duty with a view to do hysterectomy operation, opened her abdomen at about 10 p.m. in the night. But when it was opened, it was found that her uterus, ureter, bowels, and omentum, all united as a flabby globe with a chocolate cyst. As the doctor was hesitant to do further operation in such a complicated situation, she had summoned the senior most Surgeon for consultation and he advised not to do hysterectomy operation at that point of time without curing or subsiding the flabby stage of her growth as it was not safe to perform the surgery. Thereafter, the abdomen was closed, and she was removed to the recovery room and then to the pay ward. The doctor, who is the 2nd defendant again examined her and advised her to take ladogal tablets instead of hysterectomy operation since she was an unmarried woman. Then the plaintiff insisted to conduct hysterectomy operation, and informed that she had no intention to marry. Then the General Physician examined her, Cardiologist was consulted and X-Ray was taken and she was retained in the hospital for preparing her for hysterectomy operation by administering drugs. The operation could be conducted only after preparation and the plaintiff had no objection to that. But while so, she told that she wants to go home to take money and to make other arrangements for the surgery and requested for a discharge. Thus she was discharged and thereafter she did not turn up. Therefore, what type of medicines she consumed after discharge is not known to the defendants. The discharge from the hospital was at her own request. She was not entitled to realise any amount as damages from the defendants as there was no negligence in imparting treatment to the plaintiff, was the stand taken by the defendants. 4. Before the court below, the plaintiff was examined as PW 1 and PWs 2 to 7 were examined and Exts. A1 to A18 were marked. On behalf of the defendants the 2nd defendant was examined as DW1 and DW2 was also examined. Ext. B1 was marked on their side. 5. The court below on evaluation and appreciation of the evidence on record, by the impugned judgment and decree, dismissed the suit for damages. A1 to A18 were marked. On behalf of the defendants the 2nd defendant was examined as DW1 and DW2 was also examined. Ext. B1 was marked on their side. 5. The court below on evaluation and appreciation of the evidence on record, by the impugned judgment and decree, dismissed the suit for damages. Aggrieved by the said judgment and decree, this appeal has been preferred by the plaintiff alleging that the court below had erred in finding that the defendants are not negligent and it calls for an interference by this Court. In this backdrop, the question that falls for consideration is as to, whether she was subjected to an unnecessary surgery by the defendants which would entitle her to get a decree as prayed for. By filing an amendment petition she had also sought for an enhancement of the amount claimed as damages but it was not seen allowed. 6. Heard Adv. Joseph Thekkekuruvanel, the learned counsel for the plaintiff/appellant and Adv. Jomy George, the learned counsel for the defendants/respondents. 7. Admittedly, the plaintiff is an unmarried lady. She had approached the Medical Mission Hospital, Thiruvalla in the month of May, 1993 with severe abdominal pain. The defendants in the suit are Pushpagiri Hospital, Thiruvalla represented by its Administrator and one Dr. Josatta, a Gynaecologist attached to the Department of Gynaecology of the said Hospital. The learned counsel for the plaintiff vehemently contended that she was subjected to laparotomy operation by the Hospital authorities but, they did not remove the fleshy growth found in her abdomen, and simply closed her abdomen which was opened for removal of the unnecessary growth and thus she was subjected to intolerable pain and mental trauma apart from the various other ailments. The learned counsel for the plaintiff with all vehemence and sensitivity contended that this poor lady was also compelled to consume costly tablets due to the negligence on the side of the Gynaecologist and the hospital authorities who imparted treatment on her and in fact she was subjected to an unnecessary surgery, that too without her consent. 8. It is an undisputed fact that laparotomy is a major surgical procedure that involves an incision being made through the abdominal wall to gain access into the abdominal cavity. 8. It is an undisputed fact that laparotomy is a major surgical procedure that involves an incision being made through the abdominal wall to gain access into the abdominal cavity. Ext.B1 reveals that the surgery conducted on 10.12.1993 was not with the consent of the patient, but the consent was seen given by one Ambika Devi, the bystander of the plaintiff. As PW5, she deposed that she accompanied the plaintiff to the 1st defendant Hospital where the plaintiff had undergone the surgery. She admitted that she had given consent but she had no case that it was obtained by the compulsion of the doctors who treated the plaintiff on that particular day. Ext. B1 further reveals that the plaintiff had severe pain when she consulted the doctor at 8.30 p.m. on 10.12.1993 and the entries in her case sheet would show that she was 'rolling with severe abdominal pain'. One Dr.Omana and one Dr.Remani were the doctors who attended her at that time and the endorsement in the case sheet were made by them. As a matter of fact by Ext.B1, it is amply clear that the plaintiff was suffering from severe abdominal pain at the time of her admission in the hospital. It appears that was the reason for obtaining consent for the surgery from the bystander, a relative of the plaintiff. At the time of evidence, the plaintiff and PW5 had no case that the operation had been performed by the doctors without consent. Of course, as PW1, the plaintiff had deposed before the court that the doctors insisted for a surgery in order to remove the growth in her abdomen and they have decided to conduct the operation immediately after her examination when she came to the hospital on 10.12.1993. So, the contention now raised by the learned counsel for the plaintiff that laparotomy was conducted without the consent of the patient concerned, is without any merits. Consent was obtained from the bystander, who is a close relative of the plaintiff, as the condition of the plaintiff was serious and she was suffering from acute pain when she consulted in the 1st defendant hospital and that was the only option available to the doctors at that critical stage. 9. In Samira Kohli v. Dr. Prabha Manchanda [ (2008) 2 SCC 1 ], the Apex Court has held as follows: "18. 9. In Samira Kohli v. Dr. Prabha Manchanda [ (2008) 2 SCC 1 ], the Apex Court has held as follows: "18. Consent in the context of a doctor-patient relationship, means the grant of permission by the patient for an act to be carried out by the doctor, such as a diagnostic, surgical or therapeutic procedure. Consent can be implied in some circumstances from the action of the patient. For example, when a patient enters a dentist's clinic and sits in the dental chair, his consent is implied for examination, diagnosis and consultation. Except where consent can be clearly and obviously implied, there should be express consent. There is, however, a significant difference in the nature of express consent of the patient, known as 'real consent' in UK and as 'informed consent' in America. In UK, the elements of consent are defined with reference to the patient and a consent is considered to be valid and 'real' when (i) the patient gives it voluntarily without any coercion; (ii) the patient has the capacity and competence to give consent; and (iii) the patient has the minimum of adequate level of information about the nature of the procedure to which he is consenting to. On the other hand, the concept of 'informed consent' developed by American Courts, while retaining the basic requirements of consent, shifts the emphasis on the doctor's duty to disclose the necessary information to the patient to secure his consent. 'Informed' consent is defined in Taber's Cyclopedic Medical 'Consent that is given by a person after receipt of the following information: * The nature and purpose of the proposed procedure or treatment; * The expected outcome and the likelihood of success; * The risks; * The alternatives to the procedure and supporting information regarding those alternatives; and the effect of no treatment or procedure, including the effect on the prognosis and the material risks associated with no treatment. *Also included are instructions concerning what should be done if the procedure turns out to be harmful or unsuccessful.' 10. In the special facts and circumstances of this case, the doctors are justified in deviating from the normal procedure of obtaining permission from the patient directly, for surgery. The mental and physical condition of the plaintiff would render the procedure adopted by them as correct. 11. In the special facts and circumstances of this case, the doctors are justified in deviating from the normal procedure of obtaining permission from the patient directly, for surgery. The mental and physical condition of the plaintiff would render the procedure adopted by them as correct. 11. The sole question that hinges for consideration is whether an unnecessary surgery was done on the plaintiff by the defendants and as a result she had to undergo treatment by consuming costly medicines without any improvement in her physical condition or not? According to the plaintiff, she had gone to the 1st defendant hospital to have consultation with Dr. Mary Philip, an expert Gynaecologist. But as she was not available, she had consulted the duty doctor, the 2nd defendant. But Ext. B1 case sheet would show that she was treated by one Dr. Omana Jacob who was examined as DW2 and another doctor, namely, Dr.Ramani. According to Dr.Omana Jacob she was a Gynaecologist of Pushpagiri Hospital during the relevant time and had an experience of 25 years at that point of time. She deposed that she had examined the plaintiff in the labour room as referred from the casualty and during that period there was no doctor by name Mary Philip in the Hospital. She had further deposed that in fact she had referred the patient from Casualty after examination to the labour room and Dr. Remani another Gynaecologist examined her in the labour room. DW2 had given further evidence to the effect that the plaintiff was having her Scan report recently taken from Medical Mission Hospital and from the scan report, it was revealed that she had ovarian cyst and so she was administered medicine for the same. At the time of her examination she had severe pain and in fact she was struggling with pain. According to DW2, the serious physical condition was revealed to the lady who accompanied the plaintiff and had obtained consent from her and surgery was done at 10.45 p.m. on 10.12.1993, with the intention to remove the ovarian cyst, but it was found that the urinary bladder, bowels and omentum were adherent to the surface of uterus and ovary, and hence it was not possible to remove the cyst immediately. Therefore, a senior Surgeon was summoned for expert opinion and he opined that if bowel additions were removed at that stage, there was every possibility to cause injuries on the other vital parts of the body and hence only after separation of bowel by medication, a surgery can be conducted for removal of the cyst. So the cyst was not removed at that point of time and the abdomen was closed and she was shifted to the recovery room from the labour room on the next day. The reason for the failure to remove the ovarian cyst in the laparotomy conducted was therefore because, the uterus and ovary were found adherent to bladder and bowels and it was not easy to remove the ovarian cyst without removal of the bowel additions. Of course, it has come out in evidence from the records that immediately before the laparotomy, scanning was not conducted but the doctors have referred and relied on the recent scan report of the Medical Mission Hospital which was brought by the patient herself. So, after referring to the scan report and clinical examination, she was subjected to surgery is evident from the records. Ext.A1 is the scan report prepared by PW2, the doctor attached to the Medical Mission Hospital, Thiruvalla which reads as follows: “Uterus measured 7.1 cms in size. The echotexture is normal. No focal lesions noted. Lt.ovary showed a 3.5 x 4.5 cms anechoic area representing a cyst. No solid echos noted. Another cystic area measuring 3.3. x 3.8 cms in size is noted posterior to the uterus on the Rt. Side. This may represent a cyst arising from the Rt. Ovary. No free fluid noted in the pelvis. Both kidneys are of normal size and echotexture. No back pressure changes noted. The urinary bladder is normal. The scan of liver, gall bladder, spleen, pancreas are normal. No free fluid noted in the abdomen. Imp. Bilateral ovarian cysts-probably chocolate cysts.” Ext.A1, the relevant record placed for perusal, reveals that the plaintiff had ovarian cyst probably Chocolate cyst. Chocolate cyst is a fluid filled cyst usually formed within the ovary. 12. Chocolate cyst appears to be something like melted chocolate and they are also called Ovarian Endometriomas. It is an ovarian cyst filled with thick old blood. So, chocolate cyst was suspected is evident from the scan report taken from the Thiruvalla Medical Mission Hospital by PW2. Chocolate cyst is a fluid filled cyst usually formed within the ovary. 12. Chocolate cyst appears to be something like melted chocolate and they are also called Ovarian Endometriomas. It is an ovarian cyst filled with thick old blood. So, chocolate cyst was suspected is evident from the scan report taken from the Thiruvalla Medical Mission Hospital by PW2. It has come out in evidence from the deposition of DW1, Dr. Josetta, the 2nd defendant, and DW2, Dr.Omana Jacob that the plaintiff had bilateral ovarian cyst with chocolate colour. DW1 in fact had not examined the plaintiff on that particular day but it was DW2 who had conducted the surgery of the plaintiff. One Dr.Remani, another Gynaecologist had also treated her. Ext.B1 would show that on the basis of Ext.A1 scan report and pelvic examination (PV test), she was subjected to surgery and they had even suspected twisted ovarian cyst on PV test and an emergent laparotomy was conducted as her condition was serious in nature or life threatening. 13. The plaintiff is claiming damages mainly on the allegation that she was compelled to undergo an unnecessary operation on 10.12.1993 and they have simply closed her abdomen without doing anything and thereafter she had to suffer severe pain to her legs and had to consume costly medicines. Admittedly, she had undergone hysterectomy in the Medical college Hospital, Kottayam on 13.1.1995. Hysterectomy means removal of uterus. But the treatment records of the Medical College Hospital is not available on record. Ext. B1 would show that she was advised to do hysterectomy and she was admitted in the hospital to have the said surgery. But she left the hospital after few days on her volition and the said fact is not in dispute. DW1 and 2 gave evidence regarding the condition of the patient, the treatment imparted and their opinion about the further treatment proposed to be given. Of course, if there was negligence on the side of the hospital authorities and the doctors, the plaintiff is entitled to damages. This court is required to evaluate the material and documents on record with a view to find out whether she had undergone an unnecessary operation on 10.12.1993 and she continued with the same ailments and as an after effect she had to consume medicines especially costly medicines. In fact the surgery was done by DW2 and not by the 2nd defendant, Dr. In fact the surgery was done by DW2 and not by the 2nd defendant, Dr. Josetta. But she is also attached to the Department of Gynaecology of Pushpagiri Hospital and it has come out in evidence that the doctors worked as a team though the particular operation was done by DW2 and thus participated in imparting treatment on the plaintiff. So, also the evidence of DW1 is fully corroborated by the evidence of DW2, that only when the abdomen was opened it was found that it was not possible to remove the ovarian cyst alone as there was adhesion to the ovary, bowel, urinary bladder, uterus, omentum etc., and it was possible to do the surgery only after the bowel additions were subsided. Therefore, medicines were prescribed without removing the ovarian cyst and advised to conduct the surgery on a further date. It is also revealed from the deposition of DW2 and DW1 that such a decision was taken after the advice of Dr. Salim, the Senior Surgeon as well Dr. George Koshy, the Cardiologist and Dr. Prasad, the Urologist. It is also to be noted that, in order to prepare the plaintiff for the surgery, she was advised to continue in the hospital and all investigations were done to have the surgery in the very same hospital. At that time, the plaintiff left the hospital by saying that she had to arrange funds to meet the expenses of the surgery. Apparently as per Ext.A1 scan report scanning was done on 27.5.1993 and with the said scan report, the plaintiff had consulted the 1st defendant hospital and that was on 10.12.1993 in the night and PV test was conducted as she came with severe abdomen pain and twisted ovarian cyst was suspected, laparotomy was conducted on the patient immediately and that too was after examining the patient by Dr. Remani, a senior Gynaecologist of the very same hospital. The evidence as a whole would indicate that an emergent surgery was found absolutely necessary because of her acute pain and the attempt of the doctors was to remove the ovarian cyst. But it was not easy to remove the same without damaging the other organs as it was found that her uterus, urinary bladder, bowels, intestine etc., were attached to each other and appeared as a flabby dense mass. 14. But it was not easy to remove the same without damaging the other organs as it was found that her uterus, urinary bladder, bowels, intestine etc., were attached to each other and appeared as a flabby dense mass. 14. The plaintiff's case is that after treatment in the 1st defendant hospital, she had consulted PW3, a doctor attached to Government Hospital, Mavelikkara and it was told by her that an unnecessary operation was conducted to the patient and she was advised to take Ladogal tablets 200 for 100 days. PW3 had deposed that she was the Gynaecologist of that hospital during 22.4.1994 and she had diagnosed bilateral metreo cyst and so she prescribed medicines for her. It is pertinent to note that she has deposed before court that endometreosis has four stages and if chocolate cyst is developed, in the last stage, intestine, ovary, uterus and bowel etc., would form as a dense mass and at that stage, it will not be easy to conduct operation for removal of cyst and that could be realized only if the stomach is opened. But, if medicines are taken, then the dense will be reduced and thereafter it could be removed. 15. Admittedly, the surgery for removal of the cyst was conducted by PW7 Dr. Usha of the Medical College Hospital, Kottayam. She had deposed that she had seen the plaintiff for the first time on 12.1.1995. According to her, if a patient had endometriosis, hysterectomy will be done, in case the patient do not require pregnancy and children. Otherwise, treatment would be prescribed and in this case laparotomy was done on the plaintiff before the 1st defendant hospital on the impression that it was twisted ovarian cyst. But when the abdomen was opened, additions were found and surgery was not done. Of course, she has deposed that the position of the cyst and endometriosis can be determined in physical examination even without the scan report, as cyst and adhesions were found as a heavy mass. But it is to be noted that the examination of the plaintiff by PW7 was after 2 years. She has also deposed that if Ladogal tablets were taken, the dense would be reduced considerably. According to her, 4th Endometriosis had four stages and the plaintiff was in the stage and she had a heavy mass. But it is to be noted that the examination of the plaintiff by PW7 was after 2 years. She has also deposed that if Ladogal tablets were taken, the dense would be reduced considerably. According to her, 4th Endometriosis had four stages and the plaintiff was in the stage and she had a heavy mass. It is revealed from the records that the plaintiff had consumed medicines before her consultation with PW7. The details of the treatment imparted by PW7 was not made available by the plaintiff. PW7 deposed that even without scanning the abdomen, the position of the cyst to be removed could be assessed by physical examination, however, in the absence of the treatment records it is not possible to accept her version. But it is pertinent to note that PW7 has not deposed that there was professional negligence on the side of the doctors who had opened the abdomen of the plaintiff in Pushpagiri Hospital so as to remove the growth/ovarian cyst. 16. If the 2nd defendant had acted against professional ethics and carried out an unnecessary surgery, then alone she can be held liable for the ordeal undergone by the plaintiff. It is well settled that a doctor cannot be found negligent if he had acted in accordance with the practice accepted and due care and caution were taken in imparting treatment. So to attribute negligence on the part of the doctor there must be clear and definite evidence to prove that the doctor did not possess the skill and knowledge and attended the patient without due care. The plaintiff has also to prove specifically that the doctor who treated her acted negligently and conducted a surgery when there was no emergency. When an operation is performed by a doctor without any justification principle of res ipsa loquitor can be applied. Law on this subject is settled by the Supreme Court in a catena of judgments. 17. A Three Judges Bench of the Apex Court in Jacob Mathew v. State of Punjab and another ( AIR 2005 SC 3180 ) had dealt with medical negligence in the case of death in a detailed manner and held that negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A simple lack of care, an error of judgment or an accident etc are not proof of negligence on the part of a medical professional. In paragraph 27 it was observed as follows: “27. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counterproductive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur.” 18. It was further observed in para 29 that a medical practitioner 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 was finally concluded in para 49 as follows: “49. We sum up our conclusions as under: (I) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: “duty”, “breach” and “resulting damage”. (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. The essential components of negligence are three: “duty”, “breach” and “resulting damage”. (2) Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the 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 possible for every professional to possess the highest level of expertise or skills in that branch which he practices. 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. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. (4) The test for determining medical negligence as laid down in Bolamcase(1957) WLR 582, 586 holds good in its applicability in India. (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mensrea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution. (6) …..... (7) …..... (8) Res ipsa loquituris 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. Resipsaloquiturhas, if at all, a limited application in trial on a charge of criminal negligence.” 19. The Supreme Court again in Kusum Sharma and Others v. Batra Hospital and Medical research Centre and Others ( (2010) 3 SCC 480 ) after exhaustive analysis of the English and Indian judgments culled out the principle to be followed for judging negligence especially medical negligence. The important points relevant to the facts of this case are ; “I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. …....... III. The important points relevant to the facts of this case are ; “I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. II. …....... 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 of a reasonably competent practitioner in his field. V. …..... 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 so long as he performs his duties with reasonable skill and competence. 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. VIII. …....... IX. …....... X. …....... XI. ….......” 20. It is true that the ovarian cyst detected on the plaintiff was not removed in the 1st defendant hospital when laparotomy was done on 10.12.1993. Hysterectomy was done by PW7 subsequently after one year. It is unfortunate that, this surgery was done on the plaintiff, an unmarried lady. The plaintiff was admitted in the 1st defendant hospital on 10.12.1993 with severe abdominal pain. So an emergent surgery was required as the doctors suspected twisted ovarian cyst on the basis of scan report and PV test, conducted by them. It is unfortunate that, this surgery was done on the plaintiff, an unmarried lady. The plaintiff was admitted in the 1st defendant hospital on 10.12.1993 with severe abdominal pain. So an emergent surgery was required as the doctors suspected twisted ovarian cyst on the basis of scan report and PV test, conducted by them. But only on opening the abdomen, it was found that there was adhesion of the cyst with the uterus, ureter, bowels, and omentum etc., and the cyst appeared as a flabby mass and because of the same, they could not remove the same immediately. It is crystal clear from the records that the plaintiff had Endometriosis disease and ovarian cyst coupled with adhesions and so she was advised to consume medicines and it was due to the complexities and she was treated as an inpatient so as to prepare her for hysterectomy on a later date. Ext. B1 records would further reveal that all the required preparations for the conduct of hysterectomy were done by the doctors who treated her in the 1st defendant hospital. Hence, it could be gathered from the evidence that emergent laparotomy was done by the doctors with the genuine and true intention to save the patient as she was suffering from acute abdominal pain due to suspected twisted ovarian cyst. Therefore, the genuine and the good intention of the doctors is evident from the medical records. In this backdrop, it is absolutely impossible to infer that she was subjected to an unnecessary operation. Instead of that the glaring factors would reveal that she was subjected to laparotomy only to save her life in an emergent situation and that alone was done by the doctors of the 1st defendant hospital. Hence, it is not possible to think for a moment that she was subjected to an unnecessary operation as alleged by the plaintiff and the doctors failed to exercise a reasonable degree of care. In most of the cases, only if the abdomen is opened, the correct or exact position of the ovarian cyst could be ascertained by the doctors. Hence, it is not possible to think for a moment that she was subjected to an unnecessary operation as alleged by the plaintiff and the doctors failed to exercise a reasonable degree of care. In most of the cases, only if the abdomen is opened, the correct or exact position of the ovarian cyst could be ascertained by the doctors. In this case as the cyst was found with adhesions and as she was suffering from Endometriosis disease, the surgery could be done only in the presence of the experts from all the other departments, especially a surgeon, with much precautions to avoid complications, injury or damage to the other organs of the body. 21. In order to fasten liability on a medical practitioner, the court has to ascertain whether there was intentional act or omission or failure on his/her side in administering treatment to one's patient. If only there was breach or failure to follow the practice acceptable on the part of medical professional and reasonable care, attention and requisite skill expected from an expert, were not provided to save a patient from acute emergency, negligence can be attributed against a doctor. A doctor who is treating a patient may only think to relieve him/her from the sufferings and the well being of the patient will be the sole aim of the doctor and normally with all care and skill the doctors will try their level best to save the patient. Normally, a doctor will be taking the effort and risk even in cases where hard and risk factors are involved with the ultimate aim to save the patient and he/she will be satisfied only if the best treatment is provided to the patient. But, unfortunately an error or wrong judgment may happen in rare cases. It is well settled that a mere error or a mistake in identifying the disease or lack of high skill may not amount to negligence. Negligence is a failure to exercise appropriate care and attention expected to be exercised in the circumstances. Failure to attend or to give prompt treatment in case of emergency, administration of drug by way of injection, without test dose or adequate precautions, when there is possibility of drug allergy or sensitivity, will amount to negligence. Negligence is a failure to exercise appropriate care and attention expected to be exercised in the circumstances. Failure to attend or to give prompt treatment in case of emergency, administration of drug by way of injection, without test dose or adequate precautions, when there is possibility of drug allergy or sensitivity, will amount to negligence. If requisite skill, reasonable attention and reasonable care are provided to a patient, a doctor can not be said to be negligent in his activities. But mistake or error of Judgment does not necessarily establish negligence. 22. Therefore, I am unable to conclude that there was negligence on the side of the doctors. On reappraisal of the entire materials on record, I could safely conclude that the normal procedure, accepted practice and care were given to the plaintiff when she was brought with severe abdominal pain on 10.12.1993. In view of all these facts and circumstances, I find absolutely no ground to interfere with the findings entered by the court below that the plaintiff had approached the court without any genuine reason. In short, I do not find any ground whatsoever to interfere with the impugned judgment and decree. Therefore, the judgment and decree under challenge are hereby confirmed. Resultantly this appeal fails and it is accordingly dismissed. However, the parties are directed to bear their respective costs. Pending applications, if any, stand disposed of.