A "Supreme Judgment" with manifold reliefs to Doctors and Hospital : Perhaps the year end gift for Doctors.-Adv. ROHiT ERANDE.©

 The "Supreme Judgment" with manifold reliefs to Doctors and Hospital : Perhaps the year end gift for Doctors. 

Adv. ROHiT ERANDE.©

a. Non availability of Operation Theatre is not a valid ground to hold Hospital Negligent :

b. Non functioning of Machines and Equipments cannot be said to be Negligence.

c. It is an incorrect assumption to say that, "since surgery was performed by a doctor, he alone would be responsible for different aspects of the treatment required and given to the patient".

d. It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital.

e. Every death of a patient cannot on the face of it be considered to be medical negligence.

f. In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable

g. The doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed.

Case Details : Before Hon. Supreme Court of India. 

Bombay Hospital & Medical Research Centre (Appellants) Vs. Asha Jaiswal & Ors. (Complainants -Respondents)

[Civil Appeal Nos. 1658 & 2322 of 2010] 

Before : Hon. HEMANT GUPTA & J. Hon. V. RAMASUBRAMANIAN JJs. 

Judgment delivered on 30/11/2021

Judgment Link :

https://main.sci.gov.in/supremecourt/2010/4109/4109_2010_11_1501_31713_Judgement_30-Nov-2021.pdf

Facts in Short :

1. The present appeals were against an order passed by the National Consumer Disputes Redressal Commission on 06.01.2010 against the appellants i.e., Bombay Hospital  and Dr. C. Anand Somaya, directing them to pay a sum of Rs. 14,18,491/- along with interest @ 9% p.a. from the date of filing of the complaint till the date of payment.

2. The Original Compliant was field by the Respondents, i.e. the legal heirs of the deceased patient Mr. Dinesh Jaiswal, who was admitted in the said Hospital on  22.04.1998 and breathed his last on 12.06.1998, alleging Medical Negligence on Part of Doctors and Hospital resulting into death of the said patient .

3. The patient was admitted in the Hospital  as an urgent case of Aorta Aneurism. The Doctor after DSA/CAT Scan and after other  examination of the patient recorded that there were ischemic changes in both lower limbs and also noted an impending gangrene. thereafter by following SOP, a surgery was performed. The Operative notes mainly stated that "On inspection there was a huge aneurism on the lateral aspect on left side arising infra renal". 

4. It is the case of the complainant that on 24.4.1998 at about 4 am, i.e. the night after surgery, the nurse who was attending the patient observed that the pulsation of the patient had become feeble and body temperature was low and the lower limbs had gone cold. The relatives were informed at about 7 a.m that the patient was unconscious, legs were cold with no pulsation. and the Doctor inspite of informing at 4 am, turned up by 9.30 am. The Doctors advised DSA test, but the machine was out of order, hence angiography was advised, but the patient had to wait for both the said procedures. Digital subtraction angiography  (DSA) is an examination that provides images of the lumen (inner surface) of the blood vessels including the arteries,

5. It was mainly contended that the angiography conducted at 12.30 pm  showed a block (clot) at the graft, but subsequent surgery for re-grafting started at 5.30 p.m, due to non availability of operation Theatre, but it was contended to be the Negligence on part of the Hospital and Doctors of not doing surgeries in time. Ultimately the patient did not respond to the treatment and passed away on 12.06.1998.

6. The main grievances of Complainants were summarised as under : 

The Doctor had not examined the patient after surgery; (b) The patient was made to stand in queue for DSA test despite his critical condition whereafter the machine was found to be dysfunctional; (c) Angiography was performed after 8 hours of discovering that blood supply has stopped; (d) The Hospital delayed treatment by 12 hours as no operation theatre was available; (e) The Doctor did not attend the patient and left him in the care of inexperienced doctors; (f) Doctor failed to amputate legs on time on account of gangrene and did not try to treat the gangrene; and (g) The reliance on the principle of res ipsa loquitor to support the finding that it is a case of medical negligence.

Defence of Doctors :

It was contended by the Hospital that the patient was in the care of qualified doctors such as Dr. Nemish Shah, Dr. J. A. Pachore, Dr. A.L. Kripalani, Dr. Partha, Dr. H.S. Bindra and many others throughout his course of admission and no stone was left unturned to ascertain the complications and treat the same. Various specialist doctors were treating the patient and medicines/treatment was timely regulated and changed as and when required on a daily basis. Regular daily dialysis, dressing of wounds etc. were also done.

7. The Complainants filed a consumer case before the State commission, which allowed the compliant and the judgment was upheld by NCDRC too and hence the Appeal.

Held :

Their lordships while allowing the appeal of Hospital and Doctors, came heavily on the lower foras. 

1.It was observed that "We do not find that the basis of finding the Doctor negligent in providing medical care is sustainable as there are both legal and factual errors in the findings recorded by the Commission. "

2. From the record itself it was held that the gangrene was not found to be impending after few days of admission to the Hospital but even before the patient was admitted. 

Non functioning of Machines and Equipments cannot be said to be Negligence .

3.Further observations are of very much importance for Doctors and Hospitals. It was held that " the non-working of the DSA machine and consequent delay in performing the test cannot be said to be negligence on the part of the Doctor or the Hospital. The DSA machine is a large, expensive and complicated machine which unfortunately developed certain technical problem at the time when patient had to be tested. Any machine can become non-functional because of innumerable factors beyond the human control as the machines involve various mechanical, electrical and electronic components". 

Non availability of Operation Theatre is not a valid ground to hold Hospital Negligent : 

4.  No fault can be attached to the Hospital if the operation theatres were occupied when the patient was taken for surgery. Operation theatres cannot be presumed to be available at all times. Therefore, non-availability of an emergency operation theatre during the period when surgeries were being performed on other patients is not a valid ground to hold the Hospital negligent in any manner.

5. Their Lordships also relied on the OT notes, wherein it was mentioned that  a fresh graft was sutured in place after establishing the flow. It was noted that there was no movement in both the legs but had pin prick sensation and below mid-thigh, sensation was present on the lower limbs. Further, legs were warm till the ankles and the feet were cold.t was also reported that probably myonecrosis was playing more significant role in the weakness. The patient was put on dialysis thereafter.

6. It was never the case of the Complainants that the Doctors had no requite skills. In spite of the treatment, if the patient had not survived, the doctors cannot be blamed as even the doctors with the best of their abilities cannot prevent the inevitable. The allegation of delay in treatment after the surgery seems to be baseless as the patient was being administered antibiotics like Metrogyl 400 and Piperacillin Injection which are used for treatment in gangrene.

7. Their lordships rejected the contention of the Complainants that "since surgery was performed by a doctor, he alone would be responsible for different aspects of the treatment required and given to the patient", as an incorrect  assumption. 

It was also observed that, it is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital.

8. Their Lordships relied upon the celebrated judgment of  Martin F. D'Souza v. Mohd. Ishfaq of Apex Court, wherein  , it was observed that the doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitur (latin for :  the thing speaks for itself) for the reason that a patient has not favourably responded to a treatment given by a doctor or a surgery has failed. There is a tendency to blame the doctor when a patient dies or suffers some mishap. This is an intolerant conduct of the family members to not accept the death in such cases. 

It then refereed to various judgments of Apex Court and lastly it relied upon the latest judgment  Dr. Harish Kumar Khurana v. Joginder Singh & Others (2012) wherein it was observed that "Every death of a patient cannot on the face of it be considered to be medical negligence."

By above observations, the above appeals were allowed. However, Rs.5 lakhs which were deposited and withdrawn by Respondents from Court, were ordered to be treated as ex-gratia and not to be recovered back.

This is very important judgment indeed. Many facets of Medico-legal cases have been touched. No doubt for any one, to lost his/her dear one in the Hospital is irreversible and thanks to Court delay, the case finally ended in the year 2021, almost after 23 years . However, it is also equally true that it is wrong to start with the presumption that in case of every death, the Doctors are Negligent. One more aspect, the Hospital and Doctors seem to have been benefited from the proper record keeping. Always remember "No record is no proof, Poor record is Poor proof".. 

Thanks and Regards, 🙏

Adv. ROHiT ERANDE ©

Pune.