"No ICU, No Operations in Nursing homes ?" Whether Actually Supreme Court observed so or it was a Media Trial? - Adv. ROHiT Erande.©

Ignorance of Law is not an excuse and half knowledge is more dangerous than that.. In a recent medio-legal workshop, I strongly felt the above statement as Medicos were carrying wrong impressions about an important judgement of Apex Court on the relation of ICU and Operations in nursing homes.

This judgement is of 4-5 years back. The then news in Media that "Hon. Apex Court has held that No Operations in Nursing homes without ICU" has stirred up the hornet's nest amongst the Medical Fraternity.. 

In fact it in the said judgment it has ruled in favour of Doctors too..

Let's try to see in brief what exactly Hon. Apex Court was dealing with..

Case Details :

(Bijoy Sinha Roy (deceased) through heirs V/s. (Dr.) Biswanath Das & ors., Civil Appeal No(s). 4761 of 200, decided on 30/08/2017. CORAM : Hon. Mr. Adarsh Kumar Goel and Hon. Mr. Uday Umesh Lalit JJ.) 
https://indiankanoon.org/doc/186594383/

The Apex Court :

2 questions were formed by the Apex Court , 

a) Whether there was medical negligence on part of surgeon to perform the surgery and

b) Whether choice of nursing home to surgery amounted to negligence as requirement of ICU was a clear forcibility and centres with ICU were available nearby ?

1. The Apex Court dealt with various judgments to decide what is Medical Negligence and it was held in favour of Doctors that "the National Commission was justified in holding that decision to perform surgery may not itself be held to be medical negligence".

2. On 2nd question, it was held that none of the Consumer commission dealt with the aspect of ICU nor the Doctors contested this issue seriously. However as the matter was pending for 23 years, instead of remanding the matter and again to waste the time, the Apex Court in the interest of justice directed Dr. Biswanath Das to pay Rs. 5lakhs plus 12% interest to the heirs of the Complainant. (para 15 of the Judgment)

Nothing more has been commented upon the Hon. Apex Court on the ICU and its need as we have found in the Media !!  No where it has been mentioned that Nursing Homes cannot perform surgeries without ICU.. There may be conflict of opinions amongst Lawyers as to whether these observations can be called as Law ? 

Thereafter it had gone to another aspect of aims and object of Consumer Protection Act. 

Lets see the facts of the case... 

Fats of the case :

1. The case goes back to JUNE-1993. The Original Complainant late Mr. Bijoy Sinha Roy had filed the complaint for compensation for Medical Negligence on account of death of his wife, late Smt. Bani Sinha Roy,  during the operation of Hysterectomy.

2.The deceased patient had some menstrual problems and on  investigations it was found that she had multiple fibroids of varying sizes in uters. She was advised to undergo Hysterectomy in June-1993. 

3. After about 5 months, due to heavy bleeding she again visited the Opponent Doctor and she was advised for "Urgent Hysterectomy" at one Ashutosh Nursing Home. She was also suffering from high B.P. and low Haemoglobin (7 gm%). She was initially given treatment for B.P. and H.B., but it did not work out much.

4. Finally the operation was conducted on 01/12/1993 at about 8.45 a.m., but unfortunately she did not regain any consciousness and since there was no ICU Facility, lastly she was shifted to SSKM Hospital and there she took her last breath on 17/01/1994.

5. The Complainant filed the case mainly on 2 grounds, i.e.

a) The Operation was conducted when there was no emergency situation and that too without controlling her BP and HB.      and,

b) The Operation should not have been performed at the Nursing Home where there was no ICU Facility. When Dr. Das in his own wisdom selected the said nursing home and the owner of the said nursing home Dr.P.K. Mukharjee assured the complainant that the nursing home was equipped with all the medical facilities. (this aspect was stressed more seriously in Apex Court)

5. The Doctors refuted the allegations of emergency and contended that it was an emergency and in such situation the Surgeon has right to decide line of treatment. But surprisingly the allegations regarding want of ICU facilities were not replied with proper pleading and it was mentioned that same will be dealt with at the time of hearing"..

The Apex Court also directed the National Commission to consider use of video conferencing facility for examining expert witnesses wherever necessary and also stressed for having Alternative Dispute Resolution system as applicable in civil Courts under sec. 89 of CPC and further held that merely CPC is not applicable to Consumer proceedings, that does not mean that ADR provisions should not be applied. 

State Commission ruled completely against Doctors :

The State Commission directed the Doctors to pay total compensation of Rs.5 lakhs plus Rs.10,000  as cost of the litigation plus interest @ 8% p.a. and its observations can be summarised as under : 

" There was no emergency in conducting  the Hysterectomy without controlling B.P. and H.B and why there was hurry in giving anaesthesia. The alleged urgency was not also discussed with the patient and her husband by the Surgeon or the Anesthetist. The Biopsy report was also normal. Heaven would not fall if they postponed the operation for some time"

NATIONAL COMMISSION

Both the parties approached the National Commission and National Commission reversed the finding of State commission mainly relying upon Jacob Mathew's case and the medical Literature as,

"As per Jacob Mathew's case, the Doctors acted in accordance with with the practice accepted as proper by the author of the Books. The State Commission erroneously has not  accepted the evidence of expert witness Dr. S.M. Basu. Most importantly, the Doctors were acquitted from the Criminal Case and opinion about her death given by Dr. Apurba Nady was declined by the Criminal Court."

There is no Law, in my opinion which compels to have ICU in Nursing Homes nor Code of Ethics of MCI. I feel the IMA should approach the Apex Court for clarification as it may happen that this judgment may be used  against Doctors as a bargaining stick ?. Media Trial or Media's own look out may directly or indirectly cause serious damage, as in this case, to day to day practice of Medicos.

Thanks and Regards

Adv. Rohit Erande

Pune ©