The Supreme Court of India has held that complying with the Bolam Test is mandatory for adjudicating medical negligence liability in Consumer cases. Again, the Supreme Court in V. Kishan Rao v. Nikhil Super Speciality Hospital (2010) 5 SCC 513 held that in medical negligence cases pending before Consumer Commissions, to lead expert evidence is not mandatory as it may not be necessary in every case. Further, it reasoned that in exceptional cases where parties to the consumer case proceedings make out a case for leading expert evidence, the Commission concerned may permit such evidence.
The Author holds a deep reservation about this dichotomous approach and highlights the Supreme Court’s holding above as an apparent contradiction of law. The Author argues that time is ripe for the Supreme Court to mandate expert evidence in non-apparent medical negligence cases as well. In addition, the Author argues that the Supreme Court’s continued insistence on Bolam Test is beyond reason and needs to be revisited. This is particularly when select jurisdictions including the United Kingdom have done away with it. The Test abdicates the judiciary’s duty to adjudicate and hence, it is necessary for the Supreme Court to reconsider its insistence. Fairness and transparency are the twin foundations of any accountability norm. On one hand, India needs to depart from relying and applying the Bolam Test and on the other hand, it must mandate expert evidence.