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.
Judgment enclosed
1
REPORTABLE
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,
2
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.”
xxxxxx
“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.”
xxxxxx
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]
NEW DELHI
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)
WITH
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
order.
The appeals are disposed of in terms of signed
reportable
of.
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)
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