All nursing homes with no ICU should have tie up with nearest ICU facility is only an observation?
Dr KK Aggarwal
National President, IMA
In a judgement in the case of Bijoy Sinha Roy (D) vs Biswanath Das & Ors. Civil Appeal no(S).4761 of 2009 with C.A. Nos. 4762-4763 of 2009, delivered on August 30, 2017, the Supreme Court of India concurred with the appellant (since deceased) when it said, “We however, find that neither the State Commission nor the National Commission have examined the plea of the appellant that the operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post-operative risk to the life of the patient. There was no serious contest to this claim by the opposite parties”.
Here is a synopsis of the course of events.
• The appellant Bijoy Sinha Roy underwent a hysterectomy for multiple uterine fibroids on 1.12.93 morning (8.45 am) at a nursing home in Kolkata. She was hypertensive and had anemia (Hb 7).
• Postoperatively, she did not regain consciousness and she was shifted twice, first to a nursing home and then to SSKM Hospital as the nursing home where she underwent the surgery did not have an ICU facility. The appellant passed away on 17.1.94 at SSKM Hospital.
• A case of medical negligence was filed before the State Consumer Redressal Commission on two accounts: firstly, performing the surgery without first controlling the high BP and correcting the anemia and secondly, decision to perform the surgery at a nursing home which did not have an ICU for postoperative care of the patient.
• In 2005, the State Commission found in favor of the appellant and gave a verdict of medical negligence for performing the surgery without first controlling the high BP and anemia, as the surgery was not an emergency procedure, but an elective procedure.
• In 2007, the National Commission exonerated the doctor on charge of medical negligence and reversed the order of the State Commission.
• On August 30 this year the Apex Court ruled on this case. The Bench of Justices Adarsh Kumar Goel and Uday Umesh Lalit upheld the view of the National Commission in holding that decision to perform surgery may not by itself be held to be medical negligence. But, as the matter had been pending for the last 23 years, the Court directed the doctor to pay a sum of Rs.5 lakh to the heirs of the appellant without any interest to be deposited with the State Commission within 3 months, with an interest of 12% p.a., if not done so within the stipulated three months.
In this judgement, the Supreme Court has only made an ‘observation’ and has not ‘pronounced a judgement’ that performing surgeries in nursing homes without an ICU facility is liable for medical negligence. This does not mean that having an ICU now becomes mandatory for all nursing homes or other health care facilities.
Nevertheless, it is an observation of great significance that should be taken cognisance of.
Because this judgement re-emphasizes the importance of and the need for informed consent.
This judgement needs to be read along with the judgement of the UK Supreme Court in 2015 on informed consent in the case of Montgomery v Lanarkshire Health Board, where it held that the doctor has a duty “to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments”. A doctor practicing in the UK now has to inform the patient of all possible risks, even though rare, and let the patient take a decision.
This judgement also needs to be read along with the infrastructure available at various hospitals and establishments.
Before proceeding with a surgery, the patient and the family must be informed, if your nursing home does not have an ICU, but has a tie up with another healthcare facility, where the patient may be shifted to if he/she becomes critically ill. The consent form must clearly mention this information.
It has been the unwavering stand of the Indian Medical Association (IMA) that all nursing homes and such health care establishments should have a tie up with the nearest ICU facility where the patient can be shifted to in case any complications such as air embolism, pulmonary embolism develop.
However, these nursing homes must have the required first-aid back up to manage such complications, should they develop. Ambu bag, oxygen, stand by defibrillator and portable transfer ventilator should be available within the establishment. Equipped ambulance/s must be available on call to transfer the patient to another facility or hospital, when required.
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S).4761 OF 2009
BIJOY SINHA ROY (D) BY LR. APPELLANT(S) VERSUS
BISWANATH DAS & ORS. RESPONDENT(S)
WITH C.A. Nos. 4762-4763 of 2009
O R D E R
1. These appeals arise out of order of the National
Consumer Disputes Redressal Commission (NCDRC) dated
12.09.2007 in First Appeal Nos.44 of 2006, 462 of 2005 and
463 of 2005 dismissing the complaint of the appellant (now represented by legal heirs) by reversing the order of the State Commission whereby compensation was awarded to him for medical negligence, resulting in death of his wife Bijoy Sinha Roy.('the deceased').
2. The deceased had some menstrual problem in June, 1993. She consulted Dr. Bishwanath Das, respondent No.1, a Gynecologist on advise of her family physician,
Dr. Pransankar Shah. It was found that she had multiple fibroids of varying sizes in uterus. She was advised to undergo Hysterectomy. After about five months, she had severe bleeding and was advised emergency Hysterectomy at Ashutosh Nursing Home. She was also suffering from high blood pressure and her hemoglobin was around 7 gm% which indicated that she was anemic. The treatment was given for the said problems but without much success. Finally, operation was conducted on 01.12.1993 at about 8.45 A.M. She did not regain consciousness and since the Nursing Home did not have the ICU facility, she was shifted at 2.15 PM to Repose Nursing Home and thereafter to SSKM Hospital where she died on 17th January, 1994.
3. The appellant filed a complaint before the State Commission on 16th June, 1994. The appellant’s case was two fold. Firstly, the decision to perform surgery without first controlling blood pressure and hemoglobin amounted to medical negligence. The surgery was not an emergency but a planned one and conducted six months after the disease first surfaced. Secondly, having regard to the forceable complications, the decision to perform surgery at a nursing home which did not have the ICU for post operative needs also amounted to medical negligence.
4. The opposite parties contested the complaint. Their plea was that in the given situation, the surgeon was entitled to make a choice and to take the risk. If it was
not possible to stop the bleeding without performing the surgery, the surgeon rightly decided to do so. This decision cannot be held to be medical negligence. As regards the forcibility of risk in performing surgery at a nursing home which did not have ICU even when better places were available nearby, no specific reply was given.
5. Since the second aspect has been pressed more seriously, it may be appropriate to quote the pleadings in this regard :
“That Dr. Biswanath Das arranged and selected Ashutosh Nursing Home (Manimala Matri Mandir) as the place of operation of the complainant’s wife and thereby directed the complainant to make necessary arrangements at the Ashutosh Nursing Home for operating on the wife of the complainant, knowing fully well that the Ashutosh Nursing Home (Manimala Matri Mandir) did not have the proper facilities to cope with the post operative emergency situation of a patient. On
1st December, 1993, the condition of the wife of the complainant deteriorated to such an extent that there was urgent need to transfer her to the Intensive Unit and keep her under observation. But when the complainant requested Dr. P.K. Mukherjee, the proprietor of Ashutosh Nursing Home (Manimala Matri Mandir) to transfer the wife of the complainant to the Intensive Therapy Unit he was shocked to learn that there was no ITU facilities because at the time of admission Dr. Mukherjee had categorically stated to the complainant that all the best medical facilities would be provided which in fact was not so.
Wherefore the aforesaid act on the part of Dr. Biswanath Das in insisting on land selecting Ashutosh Nursing Home (Manimala Matri Mandir) for operating on the complainant’s wife is a sheer act of professional and monetary greed in order to procure his commission from the Proprietor of the said Nursing Home in lieu of admitting patients. This fact also aggravates the willful, rash, negligence and deliberate act on the part
of Dr. Biswanath Das which is also one of the causes of the untimely death of the complainant’s wife inasmuch as if the said Nursing Home had an ITU the wife of the complainant could have been removed to the said Unit at the earliest possible opportunity and at least an attempt could have been made to save her life.
Dr. Biswanath Das did not bother to take initiative to get himself involved in transferring the case to the Repose Nursing Home when the patient’s (i.e. the wife of the Complainant) condition was critical. Dr. Biswanath Das also did not meet the relative of the wife of the complainant to inform the progress of the patient which is unethical to the Medical Profession.”
6. In reply to the above averments, the stand of OP No.1 was as follows :
“With reference to the allegations made in paragraph 27 of the said show cause notice I crave leave to make my submissions at the time of hearing.”
7. The State Commission, vide order dated 19th September,
2005, held that there was medical negligence as surgery was conducted without controlling the blood pressure and hemoglobin. The State Commission held :-
“We fail to understand what prompted these two doctors the OP No.1 and 2 to be so doggedly persistent in holding the operation immediately and for that purpose to apply anaesthesia. We fail to understand what prevented them from stopping the drive for the time being and halting the operation for little time and pausing for a while, pondering over what was happening to the system of the patient and trying to restore her haemaglobin and reduce her blood pressure to the permissible limit. Heaven would not fall if they postponed the operation for some time. The Ops. Have not been able to make out any cause that the operation
was extra urgent and it did not brook any further delay. Their plea that operation was urgent in order to give a go-by to the source of bleeding has not been put in writing anywhere in the prescription or any other medical paper, nor it has been shown that the surgeon or the anaesthetist discussed this aspect with the patient party or made them aware of such an emergent need. Admittedly there was no malignancy in the Fibroid tumors in question (vide the Biopsy report). It is therefore not understood exactly what was driving these doctors to hold the operation then and there with all their vehemence. The patient had been admitted only on the previous date. They had the opportunity to watch the Blood Pressure and Haemoglobin chart only for few hours. What would have been the wrong if they deferred the operation for the time being to observe the condition of the patient for some time more.”
“In the result it is, ordered, that the complaint be allowed on contest against O.P.No.1 and 2 with litigation cost of Rs. 10,000/- (rupees ten thousand) only to be paid by these two Ops. The O.P.No. 1 shall pay a sum of R s.3 (three) Lakhs and O.P. No.2 shall pay a sum of Rs. 2 (two) lakhs to the complainant as compensation. All the payments shall be made within 60(sixty) days from the date of service of copy of this order failing which the amount shall carry interest at the rate of 8% per annum for the period of default.”
8. The complainant as well as the opposite parties preferred appeals. The National Commission reversed the above finding as follows:-
“Aforementioned medical literature submitted by OP Nos. 1 and 2 which was also before the State Commission, would show that the surgical procedure could be done on a patient with diastolic blood pressure of not more than 110 mn Hg and hemoglobin concentration of even up to 6 g/dl. However, the opinion given in medical literature submitted on behalf of complainant
contradicts that statement. To be only noted that on 30.11.1993 and before start of procedure on 1.12.1993 the BP of the deceased was 180/100. In view of the statement made in Halsbury's Laws of England (para 21) and the decisions referred to in para No.23 in Jacob Mathew's case the OP Nos. 1 and 2 who acted in accordance with the practice accepted as proper by the authors of aforesaid books relief on their behalf cannot be held guilty of negligence. Judge's preference of the opinion expressed in the books cited on behalf of OP Nos. 1 and 2 would not be sufficient to establish negligence against OP Nos. 1 and 2. Obviously, the approach of the State Commission, extracted above, in discarding the said medical literature filed on behalf of the Ops and in declining to accept the evidence of Dr. S.M.Basu, Expert, is erroneous. In the criminal Case, the opposite parties have been acquitted and the opinion as to cause of death of Mrs. Bani Sinha Roy given by Dr. Apurba Nady was not accepted by the criminal Court. Both the Ops are highly qualified. It may be stated that according to OP No. 1, the procedure performed was not elective as the deceased was having severe bleeding. Finding returned by the State Commission holding OP Nos. 1 and 2 to be negligent cannot be legally sustained.”
9. We have heard learned counsel for the parties.
10. Question for consideration is whether the National Commission applied the right test for holding that there was no medical negligence in the decision of the surgeon to perform surgery. Further question is whether the choice of nursing home to perform surgery amounted to negligence as requirement of ICU was a clear forcibility and centres with ICU were available nearby.
Test to determine medical negligence
11. Negligence is breach of duty caused by omission to do
something which a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence in the context of medical profession calls for a treatment with a difference. Error of judgment or an accident is not proof of negligence. So long as doctor follows a practice acceptable to the medical profession of the day, he cannot be held liable for negligence merely because a better alternative course was available. A professional may be held liable for negligence if he does not possess the requisite skill which he claims or if he fails to exercise reasonable competence. Every professional may not have highest skill. The test of skill expected is not of the highest skilled person. Concept of negligence differs in civil and criminal law. What may be negligence in civil law may not be so in criminal. In criminal law, element of mens rea may be required. Degree of negligence has to be much higher. Res ipsa loquitur operates in domain of civil law but has limited application on a charge of criminal negligence1.
12. These principles have been laid down by a Bench of three-Judges and continue to hold the field. This Court has also held that safeguards were necessary against initiation of criminal proceedings against medical professionals and till such safeguards are incorporated by the State, direction of this Court will operate to the effect that the
1 Jacob Mathew versus State of Punjab (2005) 6 SCC 1, para 48
private complaint will not be entertained unless credible opinion of another competent doctor in support of the charge of rashness was produced. The Investigating Officer must obtain independent and competent medical opinion preferably from a doctor in Government service, qualified in the concerned field in the light of judgment in Jacob Mathew (supra). A medical professional may not be arrested in a routine manner2.
13. In Martin F.D’Souza versus Mohd. Ishfaq3, this Court observed that uncalled for proceedings for medical negligence can have adverse impact on access to health. While action for negligence can certainly be maintained, there should be no harassment of doctors merely because their treatment was unsuccessful. This Court directed that the consumer fora must proceed with any complaint only after another competent doctor or Committee of doctors refers that there was a prima facie case. In V. Krishan Rao versus Nikhil Super Speciality Hospital4, this direction was however, held to be inconsistent with the binding judgment in Jacob Mathew (supra). It was held that there was obvious jurisprudential and conceptual differences between the cases of negligence of civil and criminal matters. Protection of the medical professionals on the one hand and protection of the consumer on the other are required to be balanced.
2 Para 50 ibid
3 (2009) 3 SCC 1
4 (2010) 5 SCC 513, para 33
14. In view of the legal position discussed above, we are of the view that the National Commission was justified in holding that decision to perform surgery may not by itself be held to be medical negligence.
15. We however, find that neither the State Commission nor the National Commission have examined the plea of the appellant that the operation should not have been performed at a nursing home which did not have the ICU when it could be reasonably foreseen that without ICU there was post operative risk to the life of the patient. There was no serious contest to this claim by the opposite parties. Having regard to the fact that the matter has been pending for the last 23 years, instead of remanding the matter for fresh adjudication on this issue, we consider it appropriate in the interests of justice to direct the opposite party No.1 to pay a sum of Rs.5 lakh to the heirs of the appellant without any interest. The amount be deposited with the State Commission within 3 months for being disbursed to the appellants. If deposit is beyond 3 months, the amount will carry interest @ 12% p.a.
16. Before parting with this order, it is necessary to refer to another important aspect relating to administration of justice by the Consumer Fora. A person coming to a consumer Court with a grievance of deficiency in service needs immediate relief. The very object of setting up Consumer Fora was to provide speedy remedy to a
consumer. The Consumer Protection Act, 1986 (the Act) was brought about in the background of world wide movement for consumer protection. Framework of the Act is based on Resolution dated 9th April, 1985 of the General Assembly of the UN to which India was a signatory5. The Act provided for protection of interests of consumers in the form of quick and speedy redressal of grievances. The provisions of the Act are in addition to and not in derogation of any other law. Thus, the Act provides for additional remedies. The authorities under the Act exercise quasi-judicial powers. The award of damages is aimed at bringing about qualitative change in the attitude of service provider6.
17. In the light of above scheme and object of the Act, following issues have emerged during the hearing with regard to functioning of Consumer Fora :
(i) Need to monitor speedy resolution of disputes;
(ii) Need to avail of ADR mechanism which is now regarded as part of access to justice.
18. To achieve the object of providing speedy remedy to a consumer steps can be taken under Section 24B of the Act. The National Commission has administrative control over all the State Commissions. Thus, the National Commission is competent to introduce monitoring mechanism for speedy
disposal. It is well known that matters are pending at
5 V. Krishna Rao (supra) Para 43
6 Nivedita Sharma versus Cellular Operators Assn. of India (2011) 14 SCC 337, paras
18 to 21
different levels for sufficiently long period which defeats the very object and purpose of the Act. We request the National Commission to consider this aspect and formulate an appropriate action plan. In this regard, we may refer to a recent decision in Hussain versus State of U.P.7 by which directions for action plans have been issued. The National Commission may also consider use of video conferencing facility for examining expert witnesses wherever necessary8.
19. The other aspect relates to use of ADR. By Act 46 of
1999, Section 89 has been added to CPC laying down mechanism for settlement of disputes outside the Court. Even though strictly speaking, the said provision is applicable only to civil courts, there is no reason to exclude its applicability to Consumer Fora having regard to the object of the said provision and the object of the consumer protection law. Accordingly, we are of the view that the said provision ought to be duly invoked by the Consumer Fora. We request the National Commission to issue appropriate directions in this regard9.
20. It will be open to the National Commission and the
State Commission to coordinate with the National Legal
Services Authority and the State Legal Services Authorities
7 (2017) 5 SCC 702, para 22
8 See observations in Krishna Veni (2017) 4 SCC 150, para 14
9 See observations of this Court on the issue of remedy of mediation in Salem Advocate Bar Association, T.N. versus UOI (2003) 1 SCC 49, para 9-10; Salem Advocate Bar Association, T.N. versus UOI (2005) 6 SCC 344, para 53; Afcons Infrastructure Ltd. v. Cherian Varkey Construction Company Pvt. Ltd. (2010) 8
SCC 23, para 28, 43-45; Moti Ram (dead) through Lrs. vs. Ashok Kumar (2011) 1 SCC 466; Vikram Bakshi & Ors. versus Sonia Khosla (Dead) by Legal Representatives (2014) 15 SCC 80, para 16-20
under the Legal Services Authority Act, 1987.
21. The appeals are disposed of accordingly.
..........................J. [ADARSH KUMAR GOEL]
..........................J. [UDAY UMESH LALIT]
30TH AUGUST, 2017
ITEM NO.101 COURT NO.11 SECTION XVII
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
Civil Appeal No(s). 4761/2009
BIJOY SINHA ROY (D) BY LR. Appellant(s) VERSUS
BISWANATH DAS . & ORS. Respondent(s)
C.A. Nos. 4762-4763/2009 (XVII)
Date : 30-08-2017 These appeals were called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE UDAY UMESH LALIT
For Appellant(s) Mr. P.N. Mishra, Sr. Adv.
Mr. Suchit Mohanty, Adv. Mr. Anupam Lal Das, AOR
For Respondent(s) Mr. Vikram Jeet Banerjee, Sr. Adv.
Mr. Senthil Jagadeesan, AOR
Ms. Madhumita Bhattacharjee, AOR Mr. Sanjay K. Ghosh, Adv.
Ms. Rupali S. Ghosh, Adv.
Mr. Avijit Bhattacharjee, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeals are disposed of in terms of signed reportable
Pending applications, if any, shall also stand disposed
(SWETA DHYANI) (PARVEEN KUMARI PASRICHA) SENIOR PERSONAL ASSISTANT BRANCH OFFICER
(Signed reportable order is placed on the file)