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"I recognize the logical force of the Canterbury doctrine, proceeding
from the premise that the patient’s right to make his own decision must
at all costs be safeguarded against the kind of medical paternalism
which assumes that ’doctor knows best’. But, with all respect, I regard
the doctrine as quite impractical in application for three principal
reasons. First, it gives insufficient weight to the realities of the
doctor/patient relationship. A very wide variety of factors must enter
into a doctor’s clinical judgment not only as to what treatment is
appropriate for a particular patient, but also as to how best to
communicate to the patient the significant factors necessary to enable
the patient to make an informed decision whether to undergo the
treatment. The doctor cannot set out to educate the patient to his own
standard of medical knowledge of all the relevant factors involved. He
may take the view, certainly with some patients, that the very fact of
his volunteering, without being asked, information of some remote risk
involved in the treatment proposed, even though he described it as
remote, may lead to that risk assuming an undue significance in the
patient’s calculations. Second, it would seem to me quite unrealistic in
any medical negligence action to confine the expert medical evidence
to an explanation of the primary medical factors involved and to deny
the court the benefit of evidence of medical opinion and practice on the
particular issue of disclosure which is under consideration. Third, the
objective test which Canterbury propounds seems to me to be so
imprecise as to be almost meaningless. If it is to be left to individual
judges to decide for themselves what "a reasonable person in the
patient’s position’ would consider a risk of sufficient significance that
he should be told about it, the outcome of litigation in this field is
likely to be quite unpredictable."
Lord Bridge however made it clear that when questioned specifically by
the patient about the risks involved in a particular treatment proposed, the
doctor’s duty is to answer truthfully and as fully as the questioner
requires. He further held that remote risk of damage (referred to as risk at
1 or 2%) need not be disclosed but if the risk of damage is substantial
(referred to as 10% risk), it may have to be disclosed. Lord Scarman, in
minority, was inclined to adopt the more stringent test laid down in
Canterbury.
25. In India, Bolam test has broadly been accepted as the general rule.
We may refer three cases of this Court. In Achutrao Haribhau Khodwa
vs. State of Maharastra - 1996 (2) SCC 634, this Court held :
"The skill of medical practitioners differs from doctor to doctor. The
nature of the profession is such that there may be more than one course
of treatment which may be advisable for treating a patient. Courts
would indeed be slow in attributing negligence on the part of a doctor
if he has performed his duties to the best of his ability and with due
care and caution. Medical opinion may differ with regard to the course
of action to be taken by a doctor treating a patient, but as long as a
doctor acts in a manner which is acceptable to the medical profession
and the Court finds that he has attended on the patient with due care
skill and diligence and if the patient still does not survive or suffers a
permanent ailment, it would be difficult to hold the doctor to be guilty
of negligence\005\005\005..In cases where the doctors act carelessly and in a
manner which is not expected of a medical practitioner, then in such a
case an action in torts would be maintainable."
In Vinitha Ashok vs. Lakshmi Hospital - 2001 (8) SCC 731, this Court
after referring to Bolam, Sidaway and Achutrao, clarified:
"A doctor will be liable for negligence in respect of diagnosis and
treatment in spite of a body of professional opinion approving his
conduct where it has not been established to the court’s satisfaction that
such opinion relied on is reasonable or responsible. If it can be
demonstrated that the professional opinion is not capable of
"I recognize the logical force of the Canterbury doctrine, proceeding
from the premise that the patient’s right to make his own decision must
at all costs be safeguarded against the kind of medical paternalism
which assumes that ’doctor knows best’. But, with all respect, I regard
the doctrine as quite impractical in application for three principal
reasons. First, it gives insufficient weight to the realities of the
doctor/patient relationship. A very wide variety of factors must enter
into a doctor’s clinical judgment not only as to what treatment is
appropriate for a particular patient, but also as to how best to
communicate to the patient the significant factors necessary to enable
the patient to make an informed decision whether to undergo the
treatment. The doctor cannot set out to educate the patient to his own
standard of medical knowledge of all the relevant factors involved. He
may take the view, certainly with some patients, that the very fact of
his volunteering, without being asked, information of some remote risk
involved in the treatment proposed, even though he described it as
remote, may lead to that risk assuming an undue significance in the
patient’s calculations. Second, it would seem to me quite unrealistic in
any medical negligence action to confine the expert medical evidence
to an explanation of the primary medical factors involved and to deny
the court the benefit of evidence of medical opinion and practice on the
particular issue of disclosure which is under consideration. Third, the
objective test which Canterbury propounds seems to me to be so
imprecise as to be almost meaningless. If it is to be left to individual
judges to decide for themselves what "a reasonable person in the
patient’s position’ would consider a risk of sufficient significance that
he should be told about it, the outcome of litigation in this field is
likely to be quite unpredictable."
Lord Bridge however made it clear that when questioned specifically by
the patient about the risks involved in a particular treatment proposed, the
doctor’s duty is to answer truthfully and as fully as the questioner
requires. He further held that remote risk of damage (referred to as risk at
1 or 2%) need not be disclosed but if the risk of damage is substantial
(referred to as 10% risk), it may have to be disclosed. Lord Scarman, in
minority, was inclined to adopt the more stringent test laid down in
Canterbury.
25. In India, Bolam test has broadly been accepted as the general rule.
We may refer three cases of this Court. In Achutrao Haribhau Khodwa
vs. State of Maharastra - 1996 (2) SCC 634, this Court held :
"The skill of medical practitioners differs from doctor to doctor. The
nature of the profession is such that there may be more than one course
of treatment which may be advisable for treating a patient. Courts
would indeed be slow in attributing negligence on the part of a doctor
if he has performed his duties to the best of his ability and with due
care and caution. Medical opinion may differ with regard to the course
of action to be taken by a doctor treating a patient, but as long as a
doctor acts in a manner which is acceptable to the medical profession
and the Court finds that he has attended on the patient with due care
skill and diligence and if the patient still does not survive or suffers a
permanent ailment, it would be difficult to hold the doctor to be guilty
of negligence\005\005\005..In cases where the doctors act carelessly and in a
manner which is not expected of a medical practitioner, then in such a
case an action in torts would be maintainable."
In Vinitha Ashok vs. Lakshmi Hospital - 2001 (8) SCC 731, this Court
after referring to Bolam, Sidaway and Achutrao, clarified:
"A doctor will be liable for negligence in respect of diagnosis and
treatment in spite of a body of professional opinion approving his
conduct where it has not been established to the court’s satisfaction that
such opinion relied on is reasonable or responsible. If it can be
demonstrated that the professional opinion is not capable of
