ON November 30, the Supreme Court, in Bombay Hospital & Medical Research Centre vs. Asha Jaiswal & Ors., set aside the order of the National Consumer Disputes Redressal Commission (NCDRC) in January 2010, holding the appellants liable for medical negligence.
The NCDRC had directed the Bombay Hospital and Dr C. Anand Somaya to pay a sum of INR 14,18,491 along with an interest of 9 percent per annum from the date of filing of the complaint till the date of payment of the amount.
Facts of the case
The complaint was filed before the Commission by the legal heirs of a deceased patient of the hospital, alleging medical negligence on the part of the hospital and the doctor in treating the patient between April and June 1998.
The patient had been receiving treatment since 1990 in connection with pain and discomfort in his leg. In April 1998, testing indicated an aneurism in the lower abdominal aorta, and he was referred by his doctor to the appellant hospital, where he was admitted for surgery by a team of surgeons led by the appellant-doctor. As per the operation notes, the procedure was successful, and the patient was shifted to the recovery room on ventilator with stable vitals.
It was the case of the complainants that during the night after the surgery, the pulse of patient fell, and his lower limbs got cold, and that he was not assessed by a doctor until the next morning. It was further alleged that the despite his critical condition, the patient was made to wait in queue for several hours to use the Digital Subtraction Angiography (DSA) machine only to find that it was not working, and then had to once again wait for hours before an angiography was performed.
The complaint further stated that the doctor/hospital had been negligent in performing the surgery, and that a clot had formed that had cut off blood supply to the limbs completely. When the clot was detected, a fresh graft was sutured, and the patient was shifted to the recovery room and put on ventilator.
The complaint alleges negligence on a number of grounds: First, Dr. Somaya arrived to inspect the patient five hours after his limbs were observed to be cold; second, in spite of his critical condition, the patient was made to wait for hours to get the necessary tests, certain machines for which were out of order; third, reports for the tests were only made available several hours later; fourth, when the doctors decided to perform surgery once again, no operation theatre was vacant, and the hospital did not have an emergency operation theatre, and they did not attempt to perform the operation in an outside theatre; fifth, Dr. Somaya did not inspect the patient until 16 hours after this operation; sixth, the doctor left the patient in the care of other inexperienced doctors and traveled abroad on vacation for a month; seventh, the nephrologist who was brought in to examine the patient indicated that both legs were beyond saving; and finally, the patient’s legs were only amputated after all the consulting doctors opined that it was the only way to save the life of the patient, by which time the limbs had been affected by gangrene.
The findings of the Commission and the Supreme Court
The Commission relied on the principle of res ipsa loquitor to support the finding that medical negligence had occurred in this case. Res ipsa loquitor is a tort law principle that allows the use of circumstantial evidence to establish negligence, even when there is no direct evidence of negligence or wrongdoing. It is not a cause of action, but a rule of evidence.
The commission observed that except for the statement of the nephrologist, claiming that he had not made a statement to the effect that the legs of the patient were beyond saving, the hospital and the doctor had merely filed statements. However, the Supreme Court found this observation erroneous, and concluded that the doctor and the hospital had filed affidavits on the same date as the nephrologist and on subsequent dates.
The Commission stated that given the conditions in India, it would be difficult to find an expert doctor who would file an affidavit against another expert doctor in establishing fault, and thus it would be a case of res ipsa loquitor.
The Supreme Court bench, comprising of Justices Hemant Gupta and V Ramasubramanian placed weightage on the submissions of the counsel for the hospital, accepting that few hospitals provided access to DSA machines in Mumbai in 1998, and that negligence could not be attributed to the hospital for unforeseeable technical issues arising with the machines, which are beyond human control. It further held that the basis of the finding of the Commission was not sustainable as were legal and factual errors in the findings.
From an observation of the material before it, the Court concluded that the patient was in critical condition even before he arrived, and that gangrene was found before he was admitted to the hospital. It also did not attribute negligence to the hospital for the lack of operation theatres and said, “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.”
When the patient’s condition did not improve, the Court noted during a re-exploration of the medical notes, that other experts had been consulted for their opinions, while the patient was being monitored and provided necessary treatment. Following the recommendations of experts, the patient’s legs were amputated, after which it was seen that his acute renal failure was improving. However, further septicemia was diagnosed later, and the patient subsequently passed away from septicemic shock while on ventilator.
Observing that the complaint does not question the requisite skills of the doctor, or allege that there was negligence in his performance of the surgery or in the process of re-exploration when complications were found, the Court went on to examine the allegations that the doctor was negligent by delaying the decision to perform the amputation, and because he had been abroad during the period immediately after the surgery. Accepting that medical professionals are continuously upgrading their skills, and that this involves attending conferences abroad, the Supreme Court found no negligence attributable to Dr Somaya for his travel, especially given that the patient had been admitted to a hospital with specialists in multi-faculties. Furthermore, the patient was kept in the Cardio Vascular Intensive Care Unit and was being observed by qualified doctors and specialists.
The Court concluded that in this era of super-specializations, one doctor cannot be responsible for all aspects of a patient’s medical problems, and that the assumption that only the doctor who performed the surgery must be responsible for the patient is an incorrect one. A doctor can only be expected to provide reasonable care, and fault cannot be attached to the doctor merely because the patient did not survive, the bench held.
Citing its judgment in Martin F. D’Souza vs. Mohd. Ishfaq (2009), the apex court reiterated that a doctor cannot be held liable for medical negligence by applying the doctrine of res ipsa loquitor simply because the patient did not respond favourably to a treatment or because a surgery failed. It further cited Jacob Mathew vs. State of Punjab and Anr. (2005) to find that “simple lack of care, an error of judgement or an accident, is not a proof of negligence on the part of a medical professional.”
“The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals’ function,” the Court observed. Noting that there was never a stage when the patient was left unattended, the Court found that Dr Somaya and the hospital had provided all possible treatment within their means and capacity and were not guilty of negligence.
The amount of INR 5 lakhs, granted to the complainants in pursuance of an interim order has been ordered to be treated as ex gratia payment.
